Last Will & Testament FAQ
A Will, also known as a “Last Will and Testament”, is a legally binding document that outlines your final wishes for the distribution of your assets after you die.
A Will determines who will take care of your minor children or pets (your “Guardians”), who will receive your assets (your “Beneficiaries”), and who will manage your estate when you’re gone (your “Executor”).
A Will is not a Power of Attorney. Powers of Attorney are legal documents that give a chosen person the right to make decisions on your behalf in the event that you are incapacitated by illness or disability. Depending on the province where you live, you might use a term other than Power of Attorney (for example, Personal Directive or Representation Agreement).
Do I need a Will?
Yes. If you’re reading this article, you probably need a Will.
But seriously––if you own property, have investments, have children and/or pets, are married or in a common-law relationship, have a modest net worth or one that is climbing, you should consider drafting a Will for your own peace of mind.
For example, Priya is 33, she’s not married, doesn’t have any children, and doesn’t yet own any property. But she is starting to accumulate a robust nest egg, and she has a niece and nephew whom she loves like her own. She may want to draft a Will to make sure they receive her assets when she dies instead of her parents, who are financially stable.
If you’re under 25, don’t have a spouse, children, or property, and have more debt than assets because #millenniallife, then you probably don’t need a Will just yet.
Basic Will terminology
Wills are full of estate planning legalese that can be difficult to understand. Here are some of the most common terms you’ll need to know when you’re becoming knowledgeable about the process of writing a Will.
Beneficiary: A person or charity you’ve named to inherit something from your estate.
Bequest: A gift of property that is given as part of your Will, either to a person or to a charity.
Devise: A gift of real estate left in your Will.
Executor: The person you appoint to administer your estate after you die. Their main duty is to carry out the instructions outlined in your Will. In some provinces, like Alberta, executors are called “personal representatives.”
Fun fact: An executor who is a woman is sometimes referred to as an “executrix”. This is becoming less and less common as we move toward using gender neutral language to refer to an executor.
Heir: Anybody who inherits something from your estate.
Intangible property: An item that has no physical substance (can’t be touched or held), such as intellectual property.
Issue: Issue are the direct lineal descendants of an individual, including children, grandchildren and great-grandchildren. Spouses, siblings, parents, and other relatives are not considered to be “issue”.
Per capita: A latin term that translates to “by head”. It refers to an equal distribution of assets among the living members of a class of people. Let’s say, for example, that Bridget wants to distribute her assets per capita to her issue. It means that if one of her children predeceases, and has children of their own (Bridget’s grandchildren), the grandchildren do not share in the distribution. It is only the living members of the class – the surviving children – that share equally.
Per stirpes: A latin term that translates to “by roots” or “by branch”. This refers to a distribution where if a beneficiary predeceases the Will-make, but has issue – the beneficiary’s share of the inheritance goes to his or her issue. Let’s say, for example, that Bridget wants to distribute her assets per stirpes to her issue. She has three children. It means that if one of her children predeceases, and has children of their own (Bridget’s grandchildren), the portion that was intended for the deceased child will be distributed equally to that child’s children (Bridget’s grandchildren).
Residue or residuary estate: All remaining money, property and other assets in an individual’s estate after the payment of taxes, settlement of debts, and distribution of any specific gifts and charitable donations.
Testator: A person who has made a Will––so, maybe you.
What should be covered in my Will?
Your basic information
It is customary to include your full legal name and the city where you reside in your Will.
Your executor’s basic information
Be sure to include the full legal name for your chosen executor: the person whom you are trusting to carry out the instructions outlined in your Will.
Your beneficiary’s basic information
As with your executor, you’ll want to make sure that you use full names of your beneficiaries, Whom do you want to include in your Will? Be sure to know the full legal names for all family members and friends who will make an appearance in your Will.
Guardianship for minor children
If you pass away before your children reach legal age, and the children have no other legal guardian, your children will need guardians. In your Will, you can appoint a person or (persons) to take on the role of guardian after your death. Don’t forget to talk to your chosen guardians before listing them in your Will! You don’t want to surprise them. And depending on the province where you live, those guardians might be required to take certain steps (such as applying to court) before they become the permanent guardians of your minor children.
In your Will, you will decide who gets what. The people and charities are called your “beneficiaries”. You can decide how specific or general you want to be in leaving your money, property and other assets to your beneficiaries.
If you want to leave some money behind for a charity, your Will is the place to do it. Be sure to specify either the dollar amount or the percentage of your estate you wish to go to said charity. Also, be sure to include the name of the charity and its charitable registration number.
In your Will, it is best practice to include a provision that gives your executor the ability to deal with your digital assets. This includes things like social media and email accounts, domain names, cryptocurrencies, etc.
Here are a few things that often don’t get included in your Will:
- Beneficiary designations on life insurance policies and registered investments
- Jointly owned property
- Gifts for pets
- Funeral and burial wishes
Do I need a lawyer to prepare my Will?
No, you don’t need a lawyer if you’re preparing a simple Will.
If you feel like your Will may be complex–say, if you have significant assets, you have a family member receiving government benefits, or you wish to exclude one of your dependants from your Will–then legal advice may be beneficial.
Estate planning documents aren’t legal until they’ve been printed and signed (by hand, with a pen).
Yes. Printed. Like, with the printer nobody owns anymore. And yes, physically signed.
If you’re considering an online Will platform, many will print and ship your estate planning documents for you if that’s a more convenient and accessible option.
In the simplest terms, after you’ve printed and received your documents, you’ll then need to:
- Sign your Will in the presence of two friends, colleagues, or neighbours
- Store your Will in a secure place, such as a locked safe
- Talk to your family and friends about the contents of your Will
How do I change my Will?
Your Will should be a living document. If you’re relatively young and you’ve created a Will as part of your estate planning, it will likely change alongside your life circumstances.
You’ll want to change your Will when you:
- Get married
- Buy new property
- Have kids
- Start a business
- Accumulate large sums of wealth (lucky you!)
- Want to change your executor
- Get divorced
- Want to change your beneficiaries
If you want to change your Will with a lawyer, there are two ways to do it.
- You can either create an entirely new Will (of course, most of which will be a carry-over from your earlier Will);
- Or you can create what’s called a “Codicil”.
A Codicil is a document that modifies your earlier Will. For example, your Codicil could say something like “I want to remove paragraph 4 from my Will and replace it with this new paragraph 4…”. This is how a Codicil keeps the existing Will intact and just makes changes to some of the provisions. Of course, this is not exactly what it would say, but I think you get the picture.
Your codicil must be in writing, dated, and signed by you and two witnesses. You’re not required to use the same witnesses as you did for your original Will.
If you’ve created your Will using an online service, the chances are you can’t make a Codicil. But that’s not a bad thing. If the updates can be made free of charge, you can make all of the changes you wish and then re-generate your documents. You’ll then need to print, sign, and witness it again.
What happens if I don’t have a Will?
In Canada, if you die without a will, it’s called dying intestate.
If you don’t have a Will when you die, your assets would be distributed according to the default rules of the province where you live.
Every province is different, but typically this is what happens in Ontario if you die without a Will:
- A spouse but no children: Your spouse inherits your entire estate.
- No spouse and no children: Your parents inherit your entire estate.
- A spouse and one child: Your spouse inherits a specific portion of your estate, and your spouse and child share the remainder.
- A spouse and more than one child: Your spouse inherits a specific portion of your estate, and your spouse and children share the remainder.
- No spouse but some children: Your children share your estate equally.
- No spouse, children, nor parents: Your siblings share your estate equally. If you have no siblings, your nieces and nephews split your estate.
Another important thing to note is that no Will means no executor.
When you haven’t appointed an executor in a Will, your death may cause tension among your family who are now obligated to divide responsibilities amongst themselves.
It’s a good reminder: Wills ultimately aren’t for the people who died.
They’re for the people who are left behind, who need clarity and guidance in regards to your wishes as they’re grieving.
Ready to create a legally binding online Will in as little as 20 minutes? Get started now with our simple questionnaire.
Most common Will Myths
Watch the video to see Epilogue Co-Founders, Arin Klug and Daniel Goldgut, break down common misconceptions about Wills and estate planning.
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