Do I Need A Lawyer To Make My Will?
Deciding to make a Will (sometimes referred to as a Last Will and Testament) takes you a big step closer to protecting your family and loved ones.
Most people know that if you die without a Will, you’re likely going to leave a headache for your loved ones. But, when it comes to writing a Will, there are some misconceptions. Many assume that the only way to create a valid Last Will and Testament is to plan a trip to an estate planning lawyer’s office and be ready to shell out the big bucks for legal advice. Because using a lawyer to make a Will is often an expensive and time-intensive process, it also begs the questions: “Do I really need a lawyer to write my Will or is there a better way?”
Fortunately, there is! Many Canadians who don’t have complex situations can now make a Will online, without a lawyer, and in the comfort of their own homes.
Can I make my own Will without a lawyer?
If you only need a basic Will, you probably don’t need the help of a lawyer. Online Will-writing services, like Epilogue, are a great choice for simple, straightforward Wills. They can be used to create valid, legally-binding Wills as long as all the required steps are followed.
That being said, some situations do warrant a lawyer’s help. You may need to ask an estate planning lawyer for legal advice if you are in one of these situations:
You want to exclude a spouse or child from your Will
You are in a second marriage
You have a child with a disability who is receiving government benefits
You have lots of assets outside of Canada
You have complicated tax questions that need a lawyer’s advice
However, if you have more straightforward needs, a simple Will is likely all you need to ensure your cherished ones are taken care of.
Do I need a lawyer to notarize or validate my Will?
You don’t need the help of a lawyer (or notary) to notarize or validate your Will. In fact, you don’t need a lawyer to be one of your witnesses either. As long as you follow Canadian laws around what makes Wills legally binding, you are good to go (more on that later.)
How do I write a Will on my own?
Your Will is unique to you. It is a legal document expressing how you wish to distribute your assets, how you want to leave your stuff, and who should care for your dependents. But the creation of any Will should follow a similar procedure.
1. Make sure you can legally write a Will
There aren’t a lot of requirements for you to be able to write a legally binding Will.
When you create and sign your Will, you need to be:
The legal age to write a Will in your province (for example, in Ontario you must be 18 years old)
Mentally able to write a Will, known as being “of sound mind.” It means you understand what the Will is and what it will do. It also means you know–in a general sense–what kinds of assets you own and who you’re leaving your assets to.
The legal age to write a Will varies across provinces.
2. How will you split your assets?
A big chunk of your Will sets out how you want to distribute your assets when you die.
A common misconception of estate planning is that you have to list everything you own and assign every single thing to a specific person.
That’s not how Wills work—and what a nightmare it would be if it was! Imagine having to revise your Will every time you sold a piece of furniture or bought a car.
Instead, you should list only the things you want specific people to get—called specific gifts. These can be items of monetary value, like an expensive watch or a sports car. They can also be things of sentimental value, like family photos or treasured letters.
The rest of your estate makes up the “residue” – the pile of everything else, including everything you didn’t list as specific gifts, like possessions, bank accounts, and real estate. You then can say who gets which portion of this pool of funds.
3. Who will care for your children?
One of the most important things parents can do to protect their children is plan who will take over as their guardian(s). Guardians are people who step in to care for your minor children in the devastating (but unlikely) event both you and your spouse die while they are still minors. It is really important that you use your Will to document these wishes – in fact, it’s the only place to do it.
When you think about who would be best suited to be your minor children’s guardian(s), there are a few questions to ask yourself.
Will the person, people, or family be able to devote the time, energy, and money my children need?
As any parent knows all too well, children are a lot of work. They need love, care, attention, and lots of financial resources. Guardians must be able and willing to provide for all aspects of their needs if you and your spouse aren’t around.
Does the person live far away from where my children are now?
The impact of moving far away to be with their guardian can vary depending on how old your children are.
If your kids are older and have established lives and friends where they are, uprooting them can be very disruptive to their development. But if your kids are very young and haven’t become too attached to a particular place, they might not mind moving.
What are the guardian’s religious or spiritual convictions? What are their moral values and views on education?
You should also consider whether your minor children’s potential guardian shares your values and beliefs on how to raise kids.
Will these people make the same decisions you would have made about your children’s religion? What about the type of schooling they receive? Should get lots of guidance or get free rein to make their own choices?
These are important details to think about when you name a guardian.
Does your potential guardian know what you’re asking them to do?
Do they agree to take on the responsibility?
Before you name a guardian, always talk to them first. You need to know whether they are willing and able to take on the role if both you and your spouse pass away while your kids are still minors. It’s really hard to be confident that they can handle the responsibility without having a conversation with them first.
4. Will you donate to charity?
An often overlooked aspect of writing a Will is the opportunity to donate a part of your estate to charity.
If you’ve spent a good part of your life supporting a cause that’s close to your heart, you can continue to support it after you pass away as well. Or perhaps you never had the means to make a meaningful donation when you were alive. A Will is a wonderful opportunity to make a contribution as part of your legacy.
When you die, most of your assets and property get liquidated (meaning, they get turned into cash.) When writing your Will, you can leave a portion of this money to the charities that mean the most to you.
5. Who will carry out your wishes?
So, you’ve decided how to divide your estate and who will take care of your minor children. The next step is to figure out who’s responsible for making sure everything happens just as you want it to.
This person is your executor and everyone writing a Will has to name one.
Executors gather all your assets and distribute them to the beneficiaries and charities you chose. They will also use a part of your estate to pay off your debts (including any taxes you owe—yes, you have to pay taxes even in death!)
There’s a lot of work and legal and financial know-how involved with being an executor of someone’s Will. An executor has to deal with the courts, close your credit card accounts, and divide up all your assets. The best person to choose won’t just be someone you trust but also someone who has the time and financial aptitude to carry out your wishes.
If you think carrying executorship a two-person job, you can add a second executor. You can even decide to name a second person as a backup executor in case your original executor can’t (or won’t) do the job. The point is, when you have a Will, you have more control over what happens with your estate when you’re no longer around to manage things.
As with guardianship, it is a good idea to make sure the executor is up for the job.
6. Date, sign, and witness the Will
Now comes the easy part! When you’ve put all your final wishes into your Will, it’s ready to be printed and signed.
Making sure your Will is legal is pretty simple and doesn’t require the help of a lawyer or notary. All you have to do is:
Print your Will (you need a physical, paper copy.)
Date and sign the Will in the presence of two witnesses (your witnesses shouldn’t be beneficiaries or spouses of beneficiaries.)
Have your two witnesses sign the Will as well.
There are a few other things we recommend doing after you finish making your Will to make sure it’s legal, safe, and always up-to-date, including finding a safe place to store it and talking to your friends and family about your wishes.
And there you have it! A completely valid, legally-binding Will.
What doesn’t go in my Will?
A Will should be a comprehensive document covering all the assets you want to give away. But there are a handful of things that likely won’t appear in your Will:
Jointly owned accounts, businesses, and properties
Life insurance policies
Retirement plan policies
Gifts and money for pets
Funeral and burial wishes
Jointly owned accounts, properties, and businesses
If you jointly own a bank account, your relationship with your co-owners has a feature called the right of survivorship. When one co-owner dies, the other surviving co-owner automatically gets 100% of the ownership. The same is true for any business or real estate property you own as a joint tenant.
This means when you die, you no longer own any part of that account of property—and you have no part of it to gift to others.
Life insurance & retirement plan policies
Insurance policies and retirement plan policies like the Canadian Pension Plan already name your beneficiaries. When you die, that insurance payout automatically goes to your designated beneficiaries. Unless you are doing sophisticated planning, it is best to just have one designation with the institution.
Gifts and money for pets
For estate law purposes, pets are “things” or property. So you can’t leave them any items or money in your Will since they can’t legally own anything.
What you can do is leave a pet (a.k.a. the property) to someone and give that person toys, items, food, and money to ensure your pet lives a happy and comfortable life if they outlive you.
Funeral and burial wishes
Whatever you do, do not leave the only copy of your funeral and burial wishes in your Will.
It can sometimes take people days, or even weeks, to locate an original Will after someone dies. Meanwhile, most funerals in Canada happen within a few days of a person’s death.
It’s possible those planning your funeral won’t find your Will in time to know how you wanted to say goodbye. So, if you want your favourite flowers or a special song played at your funeral or if you want to be buried with a meaningful memento, it’s best to document that separately and tell your executor what you want. I’m sure the last thing you want is for your family to find out weeks later that you wanted one form of burial when they chose another.
Gone are the days where you had to hire an estate planning lawyer to write your Will. Making a Will now is easier than ever, with online services like Epilogue. You can make a Will online in a matter of minutes without having to visit a lawyer’s office.
No matter how you choose to do it, make sure you have a legal Will and Power of Attorney in place to keep you and your loved ones safe.