Estate Planning Documents Every BC Adult Should Have

Most people think of estate planning as making a will. But a will only takes effect when you die. It does nothing if an illness or accident leaves you unable to manage your money or make health care decisions while you are alive.

A complete plan in British Columbia usually has several documents, each doing a different job. Here is what each one covers, what happens if one is missing, and the life events that should prompt a review.

Your will: who inherits and who is in charge

A will names your executor, the person who will deal with your estate, and says who receives your property. It can hold gifts in trust for young beneficiaries instead of handing them over outright, and if you have young children you can use it to name a guardian for them.

BC has specific rules for signing and witnessing a will under the Wills, Estates and Succession Act (WESA). We explain them in Making a Valid Will in BC. If you die without a valid will, WESA decides who inherits, and the result may not be what you would have chosen; see Dying Without a Will in BC.

Once your will is signed, you can file a wills notice with BC's Vital Statistics Agency recording where the original is kept. The Agency does not keep a copy or record what the will says, but your executor will need a search of the wills registry when applying for probate.

An enduring power of attorney for money and property

An enduring power of attorney, made under Part 2 of the Power of Attorney Act, names someone (your attorney) to make financial and legal decisions for you, and it keeps working if you become mentally incapable. The document must say whether your attorney can act while you are still capable or only once you are not.

It does not cover health care. It also has a limit people rarely expect: an attorney generally needs court authorization to change beneficiary designations, but statutory exceptions permit certain designations without an order, including preserving the same beneficiary when renewing, replacing or converting an existing plan. Getting your designations right while you can is part of the plan, not an afterthought.

Health and personal care: representation agreement and advance directive

Decisions about your health and personal care need different documents. A representation agreement under the Representation Agreement Act lets you name a representative to make those decisions if you cannot. A section 9 agreement gives broader authority over personal care and health care; a section 7 agreement covers personal care, health care, routine management of financial affairs and obtaining legal services. We compare these with a power of attorney in our article on choosing between a power of attorney and a representation agreement.

An advance directive is your own written instruction to health care providers, giving or refusing consent to particular health care in case you later cannot decide. It must be in writing, signed and dated by you, and witnessed as the Act requires. If you have both an advance directive and a representative, the law sets out which one governs a particular decision, so the two should be prepared together.

Without either document, a health care provider who needs consent chooses a temporary substitute decision maker from a ranked list in the Health Care (Consent) and Care Facility (Admission) Act, starting with your spouse and moving through children, parents, siblings and other relatives to a close friend. That person's role is limited to health care decisions, and they may not be the person you would have picked.

The Province notes that you can register a representation agreement with the Nidus Personal Planning Resource Centre and Registry, a non-profit organization. Registration is optional.

Beneficiary designations: assets that may bypass your will

Registered plans such as RRSPs, RRIFs and TFSAs, and many pension plans, let you name a beneficiary directly. Under Part 5 of WESA you can make that designation in the plan documents or in your will, as long as a designation in a will refers expressly to the plan. Life insurance designations fall under the Insurance Act instead.

A designated benefit is generally paid to the person you name rather than through your estate. That can be useful, including for reducing probate fees, but a designation that no longer matches your will can undo the split you intended between family members. Check every plan and policy when you make or change your will.

Life events that should prompt a review

• Marriage. Under WESA, which generally applies when someone dies on or after 31 March 2014, marriage no longer revokes a will. A will you made before marrying can stay in force after the wedding, even if it says nothing about your spouse, so review it when you marry. If you married before that date and made a will earlier, ask a lawyer how the old rule affects it.
• Separation. If you and your spouse stop being spouses under WESA, a gift to them in your will, and their appointment as executor or trustee, is revoked unless the will shows a contrary intention. A later reconciliation does not undo that. For married spouses this generally happens on separation; for unmarried spouses, when either ends the relationship. This rule deals with your will only, so review beneficiary designations, your power of attorney and your representation agreement separately.
• Living together. Two people who have lived together in a marriage-like relationship for at least two years are spouses under WESA, which matters for who inherits without a will and for claims against a will.
• Other changes. A new child, a move, buying property or a business, or the death or incapacity of someone you named as executor, attorney or representative.

Starting an estate plan? Put the full set of documents in place together

Our wills and estate planning lawyers can prepare a will, enduring power of attorney and representation agreement that work together, and review your beneficiary designations against your will.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.