Ever heard the phrase, “cheap advice is the most expensive kind”? This rarely rings truer than when examined through the context of legal services – particularly estate planning and Wills.
There are many important reasons to have a Will but people who have never sought assistance from a legal professional may sometimes wonder: “Can I make my own Will or do I need to hire a professional?” This question is most quickly answered by asking more questions. Would you conduct your own vehicle repairs? Diagnose and treat your own medical conditions? Design and manage your own home renovations? Unless you are someone with extensive knowledge, training and expertise in one of these areas, you would most definitely answer “No!” to all of the above. There are certain undertakings that are best left to professionals.
Value of a Notary
So, what, then, is the role of a Notary in helping to draft your Will?
People often think that they are paying for a notary to “validate” their Will and that the notary’s “value” come from their signature. But the truth is that a notary or lawyer is not required to validate or notarize a Will in British Columbia. When a notary signs a Will, she is doing so in her role as a witness, which is done in facilitation of the proper legal requirements and statutory formalities.
Thus, the value of consulting a legal professional does not come from the notary’s signature but the estate planning advice that is provided prior to signing the Will.
Role of a Notary:
- Help you get started!
- Discuss the Will-maker’s circumstances (assets, debts, family structure and relationships).
- Identify the Will-maker’s objectives.
- Offer options for best achieving the Will-maker’s goals and provide advice as to the ramifications of each option presented – the impact of which may have different tax-efficiencies* and/or reporting and filing obligations.
(*Note: while notaries have general knowledge of taxes and fees owing in connection with probate, capital gains and RSPs, clients must consult their own accountant for specific tax questions and tax advice). - Provide information and explanation about methods of bringing property into vs. outside of the estate.
- Facilitate changes via family transfer or change in owner tenancy (Joint Tenants vs. Tenants in Common) at the Land Title Office and/or the Manufactured Home Registry.
- Ascertain and document legal capacity of the Will-maker.
- Protect the Will-maker’s independence and safeguard against undue influence.
- Answer the Will-maker’s questions.
- Draft required estate planning documents (which may include a Will, promissory note or deed of gift).
- Explain, review and witness documents. (Note: our notary declines all requests to “notarize” or witness Wills that were not prepared by our office).
- Advise, inform, explain and prepare personal planning documents (Power of Attorney and Representation Agreement).
Limitations on a Notary’s Role in Estate Planning
BC Notaries receive training in estate and personal planning matters, enabling them to provide assistance to the vast majority of Will-makers.
However, BC Notaries cannot prepare Wills containing trusts that last for a beneficiary’s lifetime – including discretionary trusts for beneficiaries with disabilities – or beyond when the youngest member of a class of beneficiaries reaches the age of 19 years. (In such cases, the Will-maker is best to consult a trust lawyer with estate planning experience).
Conversely, Notaries only prepare testamentary trusts where assets vest with the adult-beneficiaries immediately on the death of the Will-maker or, in the case of minors, when the beneficiaries reach the age of majority (meaning that the trust is drawn only to protect and provide for beneficiaries during their age of minority).
Who Our Notary Assists
- Single persons (divorced, separated, widowed, single), aged 16+
- Couples (common law, married, in a “marriage-like” relationship)
- Persons with children, pets and/or dependents
- First-time / expectant parents
- Blended families (children from previous relationships)
- Homeowners
- Adults (age 19+) with reduced cognitive capacity, seeking a Representation Agreement for assistance with health care and routine management of financial affairs
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Not sure if we can help you?
Have outstanding questions?
Looking to get started?
Give us a call: 604-576-3211
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