October 1-7, 2023 is Make a Will Week in British Columbia, dedicated to encouraging people to create or update their wills. As an organization that works to empower people with disabilities to live good lives, we understand the importance of long-term planning to provide peace of mind for you and your loved ones with disabilities.
We hope that the following tips will help you get started on your will-making journey.
Find the right legal professional
Every province and territory has their own legislation around wills, trusts, and other estate planning considerations such as the provincial disability income assistance and benefit program regulations. You will want to work with a legal professional in your province or territory who is well versed in this legislation as well as how disability benefits can be impacted by what is written in your will.
We suggest interviewing at least two different lawyers before deciding who will work with you to create your will. Plan Institute has developed a list of important questions to ask a lawyer before deciding who is the right fit for you. This list goes through many considerations, such as asking them about important key issues and considerations that may arise while planning for a person with a disability, and how many disability trusts they’ve created in the last 10 years.
Remember a will is not set in stone
You do not need to know everything that you want your will to include before you start the process of creating one. The lawyer that you are working with is the expert and should be able to explain all of the options available to you, as well as any potential risks.
You also don’t need to have a perfect solution to every problem that comes up when making a will. Often when you are creating a will you are trying to find the best possible solution, such as choosing who will be your child’s guardian or act as trustee for your loved one’s disability trust. Having a will allows you peace of mind knowing that you have made the best choice based on your available options and that if you pass away, your assets and loved ones are protected as much as possible. Your will can be updated over time and so if other better solutions come up in the future, you can meet with the same lawyer (or another lawyer) to discuss updating your will accordingly.
Having a poorly made will or no will at all can result in negative outcomes
Not having a valid will requires others to make important decisions for you – often with results that you would not have wanted.
If there is no will in place, somebody can apply to the court to be the Administrator of the estate. If there is nobody willing or able to be the Administrator of the estate then you will likely need to pay for the Public Guardian and Trustee to do the research needed to sort out their assets and give them to the right people or institutions. Both of these options can cost your estate more money than it would have cost you to set your will up. You can read more on this here.
Be aware of what passes outside of a will
Three types of property which may be distributed outside of your will are:
- any property you own jointly with another person with the right of survivorship;
- any property in which you have properly designated a beneficiary, such as RDSPs, RRSPs, RRIFs, or life insurance policies (please note: there may now be a growing requirement to properly document intention of whether the beneficiary designation is, in fact, a gift depending on who the beneficiary is – please speak to your legal advisor about this issue);
- and property that you have already placed in a living trust. For an RDSP beneficiary, it will be their will that determines where the money in their account will go if they pass away before they can use it. If they are unable to make a will, the distribution will be determined by the rules of intestate succession in BC.
You must be an adult and have “testamentary capacity” to make a will
In most of Canada, an adult is considered 16 years of age when it comes to making a will (although this differs by province/territory).
Testamentary capacity includes the ability to understand what a will is, what property you own and its approximate value, and to whom you have an obligation to financially support such as a child or spouse. This is not the same as other types of capacity, so your loved one with a disability may have the ability to create a will even if they do not have the capacity to do other things like entering into a complex financial contract.
Review your will often
It’s a good idea to revisit your will at least once every 5-10 years, as well as when you experience a major life change such as selling or purchasing property, divorce, the addition of new family members, etc. Reviewing your will regularly provides you the opportunity to remember what your wishes were when you set it up and to determine whether they are still the same now.
Resources
Having a properly made will can seem like a challenge, but it is a necessary step in future planning. Here are some resources to help you get started:
- Disability Planning Helpline: Plan Institute offers a free Disability Planning Helpline service, available Canada-wide for all of your disability planning questions. Contact our Helpline today at 1-844-311-7526 or info@rdsp.com.
- Download the free Safe and Secure: Seven Steps on the Path to a Good Life for People with Disabilities workbook
If you are wanting to review the Will Planning worksheet only, you can find it here. - Wills, Trusts & Estate Planning Webinar
This online workshop is hosted by Plan Institute and costs $25 per person. Please note that for those who need financial assistance, we offer a bursary to cover 100% of the cost. - B.C. Lawyer Referral List
- Ontario Professional Directory (P4P Planning Network)
- How do I make a will (Clicklaw)
Disclaimer
This is not professional advice: This document and its contents are for informational purposes only and are not legal, tax, investment, financial, medical or other professional advice, and should not be construed as a recommendation for any particular course of action.
Plan Institute is providing the information “as is” and is not responsible or liable for any inaccuracies, errors or omissions in the information, or for the information being incomplete or out of date. You use the information and make decisions and take actions in reliance on the information solely at your own risk, and Plan Institute will not be liable for your use or reliance on any information it provides.
You should consult with qualified professional advisors before making any legal, financial, medical or healthcare decisions.
Restrictions: You may only copy and use this document and its contents for your own personal use, and you must not distribute, publish, disseminate or otherwise make available this document without Plan Institute’s consent.