Legal Will Basics 101
In this article, we will answer all of the pressing questions on creating a Will in Canada, and what’s needed to make it official.
Your Last Will and Testament is a legal document that outlines how you wish to distribute your assets such as property, money, or care of minor children after you die. Your Will is also where you name your Executor who will be in charge of settling your affairs on your behalf.
Creating a Will is an important responsibility of an adult and can be created once you reach the age of majority in your province or territory. Life is unpredictable but having a Will can help us prepare for the unexpected and protect our loved ones from future chaos and complications.
Assigning an Executor (instead of waiting for the courts to do so) helps provide access to the necessary accounts and property to settle your estate. Even if you do not own much in terms of assets, something as simple as access to clean out your fridge and personal belongings may be delayed if no legal Executor has been chosen.
While all adults should have one, here are some key factors that drive people to create their Will:
- You recently got married or remarried
- You are currently in a common-law marriage
- You recently went through a common-law separation or divorce
- You have assets such as a home or multiple properties
- You have a child(ren) and/or other dependants
- You own valuable heirlooms such as art or jewelry
- You have assets that as a result of your death may cause tension among surviving family
- You own a business or investments
- You have a cause that really matters to you that you wish to donate to
If any of the above situations apply to you, we highly recommend creating a Will as soon as possible so you can have peace of mind that your assets will be distributed among your loved ones, in the way you intended.
Canadian law and government regulations do not require you to create your Will with a lawyer or notary. A lawyer can assist if you need legal advice, but most people have simple and straightforward estates that do not require legal advice. Software like Willful can guide you through the process to customize your legal documents to fit your needs and wishes.
Everybody has the right to prepare their own Will. You can even draft your Will on a blank piece of paper if it’s signed and witnessed correctly. However using software like Willful ensures you don’t leave out anything important or create contradictions through common mistakes and errors.
With reasons like, “I’m too busy in my daily life,” “it’s a morbid topic,” or “I’m too young to worry about a Will,” it’s easy to understand why more than 56% of Canadians do not have a Will.
In the event you die without a Will, the law says that you have died “intestate,” meaning that you haven’t left any instructions as to how you would like your property to be divided and distributed.
So what does that mean for your assets? In these circumstances, your property will be divided according to the laws of the province or territory you live in. Usually, this is a set formula that the courts will decide on and ultimately your wishes or outcome will not be the same as what the courts choose.Negative implications if you choose not to make a Will, or do not get the chance before you pass on, may include but are not limited to:
- Your estate may not be divided how you want it to be
- The court will decide who becomes the caregiver of any children
- Financial and emotional difficulties for your spouse and family (especially for those who are in common-law relationships)
- A missed opportunity for any charitable donations
- The time it takes to close your affairs may take months and even years longer than if you had a written Will
We’ve all heard stories before about celebrities who die without a Will. But this drama and pain is not exclusive to those with fame and massive fortunes.
Your will is the roadmap to help guide your Executor to settle your affairs on your behalf.
It will be the job of the Executor named in your Will to distribute your assets as requested, which could include transferring ownership, paying off your debts, filing income tax returns, and distributing any remaining assets according to the terms of the will. Sometimes an Executor is referred to as your personal representative.
An original copy of your Will should be stored somewhere safe, in a place that is known and accessible to your Executor. If you’re keeping your Will at home, we recommend storing it in a fireproof box or bag. Keep it away from moisture, direct sunlight or anything else that can impact the paper and ink.
You want your documents to be clearly legible for your Executor and any institution that may need to see it.
Another good option is a safety deposit box. Make sure your family or Executor will have access to it when you pass away, by double checking with the bank in advance.
Registering your will on CanadaWillRegistry.org also helps to ensure your executor knows where it is - so if they forget, or you forget to tell them, your executor can perform a search to find out exactly where it’s located.
A Will is not a one-and-done type of document. It’s living and breathing and should reflect life’s changes as they happen. Monumental moments like the birth of a child, purchase of a new home, marriage or divorce are all life events that can directly affect and change your wishes.
An outdated Will may mean your assets could end up with someone that you’re no longer associated with such as a former spouse or common-law partner. At Willful, we firmly believe that keeping an updated Will is paramount and doing a yearly check-in can help prevent outdated Wills.
In Canada, a Will written in any province will be valid in other provinces, so long as its provisions do not contradict the laws of the province it is being applied in. There are differences in the laws, but courts will do whatever they can to carry out the clear intent of a will drafted in another jurisdiction.
At Willful, we ensure that each template document we create uses the correct terminology and verbiage outlined by the regulations of each province. We partner with local estate planning lawyers in each province who keep us updated on any changes in the law that could impact our customers and their documents.
Mirrored Wills are used to allow two people, usually married couples, to create almost identical wills which leaves everything to each other. This would cover both parties’ wishes. If the two married people die at the same time, or within thirty days of each other, then everything would go to the couples’ children or a named beneficiary.
You’ll need to grab a pen because digitally-signed Wills are not currently recognized as valid in Canada. To maximize the likelihood that your requests are met, you will need a Will that is physically printed and signed by you and your witnesses in writing. You may sometimes hear the term wet signature which just means a signature that needs time to dry or is signed in ink.
Once you have drafted your Will, and it accurately reflects your wishes, you must sign it in the presence of at least two witnesses, and the two witnesses must also sign the Will in the presence of you the “testator.”
Your witnesses could be any two adults; friends, neighbors or co-workers. The witness cannot be:
- A beneficiary of the Will
- The spouse of a beneficiary at the time of signing
- A minor.
After the printed document is signed and witnessed, it becomes your legal Last Will and Testament.
It’s not over yet! Once you’re happy with your Will and it’s been signed and stored in a safe place here’s what to consider next.
Update it after life changes: It’s essential to keep your Will up-to-date as life changes. Consider setting a calendar reminder every 6 or 12 months, so your Will doesn’t collect dust and reflects your most current wishes.
Let your executor know you’ve picked them: It’s a role that requires a lot of responsibility; therefore you should inform the person they’ve been chosen in order to avoid any surprises down the road.
Tell your executor and or family where it’s located: A Will is pretty useless if nobody can find it! Make sure to let a trusted family member or your executor know where they can access it should something happen to you.
We hope this article helped you learn more about creating a Will in Canada. Please remember that Willful is not a law firm and cannot provide legal advice. All information in our Learn Centre is general and public information that can also be researched through your provincial attorney general website.