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When someone dies without a Will, it’s called dying “intestate”. When someone dies intestate, they don’t get a say in important decisions like how their assets will be distributed, who gets to be in charge of the process, and who will take care of any minor children. The rules about how assets are distributed differ depending on the situation. Here are some of the rules that apply to someone who dies without a Will in British Columbia:
- A spouse and no children: The spouse gets everything.
- A spouse and children (all with the same spouse): The spouse gets all the furniture and $300,000 “off the top”, and the rest is divided one-half to the spouse and one-half to the children.
- A spouse and children (not all with the same spouse): The surviving spouse gets $150,000 “off the top,” and the rest is divided one-half to the spouse and one-half to the children.
- Children but no surviving spouse: Everything is split equally between children. If a child is not alive, but they have kids of their own who are alive (grandchildren of the person who died intestate), the deceased child’s portion is divided equally among those kids.
- No living spouse or children: Everything goes to the deceased’s parents (or surviving parent, if there is only one). If the parents aren’t alive, then everything is split between the deceased’s siblings (or the descendants of a sibling who is not alive).
A lawyer is not necessary to make a legally-binding Last Will and Testament in British Columbia. In most cases, as long as the testator (person making the Will) is at least 16 and is “of sound mind”, they can make a legal Will.
Having said that, there are a few situations where someone may want to get in touch with a lawyer to make a Will, such as:
- If they want to exclude a spouse, child, or another dependant from their Will;
- If they want to distribute their assets unequally among their children;
- If they are in a second marriage/common-law relationship but have children from a prior relationship;
- If there is a family member who is receiving government disability benefits;
- If they own real estate outside the province that cannot be dealt with under a British Columbia Will; or
- If they want to engage in sophisticated tax planning.
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Generally, parents are the legal guardians of their children. If one of them passes away before the other, the surviving parent would usually continue to be the children’s legal guardian.
A parent (or other legal guardian of minor children) can name someone in their Will to take over that role in case they are the last surviving guardian of the children. If the last surviving guardian passes away (or if both guardians die at the same time), the person named in Will would assume the responsibilities of guardianship.
Someone’s Will only takes effect once they are no longer alive. However, there are many cases where someone is alive, but is no longer capable of making decisions for themselves. For example, this can happen as a result of an accident or due to general cognitive decline that can occur with ageing. This is where a Power of Attorney (POA) becomes important.
A POA is made by someone while they are still mentally capable. It allows them to name the person who can deal with their financial affairs (e.g. paying bills, managing investments, selling property) in the event that they are alive but have lost the capacity to manage these things for themselves.
British Columbia has additional requirements when a POA authorizes someone to deal with real estate (e.g. a home or investment property). If the person who makes a POA wants to grant the authority to deal with real estate (e.g. sell, transfer, mortgage, etc.), the POA needs to be witnessed by a lawyer or notary. In cases where the person being named does not have the authority to deal with real estate, the POA does not have to be witnessed by a lawyer/notary.
Under a Representation Agreement, someone (referred to a the “representative”) agrees to take on the responsibility of making health care decisions for another person if that person loses the capacity to make those decisions for themselves. In some provinces, this type of document is referred to as a Power of Attorney for Personal Care or a Health Care Directive, and is sometimes also referred to as a Living Will.