How Do You Start a Will?
So, you’ve decided to write your Will and finally check that giant to-do off your list. Congratulations!
Writing a Last Will and Testament (Will) can be pretty straightforward for most people as long as you know what to expect. This article will outline everything you need to know about starting a Will in Canada and the different ways you can get going!
The ABC’s of estate planning
Before discussing what goes into a Will, let’s take a look at some of the important terms you’ll need to know when writing your Will.
The person that creates the Will, and for whom it is for.
Anything of value, tangible or intangible, that the testator owns. Assets can include cash, bank accounts, real estate property, cars, stocks, investments, and even digital assets like electronic photos and bitcoin.
In the context of a Will, a beneficiary is someone who gets assets from your Will when you pass away. In the context of a trust, a beneficiary is the person a trust is created for.
A person you choose to carry out the wishes in your Will. If you appoint more than one executor, they are called co-executors.
A person (or persons) who has the legal responsibility to take care of a minor. If you name a guardian in your Will and you die before your children reach the age of majority in your province, these are the people that will be responsible for caring for your children.
Generally speaking, a trust involves a relationship where one person (the trustee) holds assets for the benefit of another (the beneficiary). For starters, an “estate” is a trust. The estate trustee manages the property of the estate for the benefit of the beneficiaries. It is also possible for an “estate” to be split up into multiple trusts, which often happens when a testator leaves money to their minor child. The money can be held in a trust that is managed by the trustee until the child is old enough to handle the money by themselves.
Getting ready: Will preparation checklist
When preparing to write your Will, it’s a good idea to have certain pieces of information ready so you’ll be more prepared when it is time to make some big decisions. Let’s start with the easy stuff. You’ll need some basic details such as:
- Full names of your loved ones
- A general sense of your assets and debts
Contrary to what you may think, you don’t need to list everything you own in your Will. You just need to have a ballpark idea of your assets in order to come up with a distribution plan.
It’s a good idea to do some thinking about who you want to name for specific roles in your Will. For some, like executor and guardian, you’ll also want to have conversations with those people first to make sure they are ready and willing to take on the job.
Ask yourself these questions to mentally prepare yourself to start your Will:
Who would I trust to take care of my minor children?
For parents of young children, naming a guardian may be the most important thing you put in your Will.
A guardian raises your kids if you and your spouse (or the child’s other parent/guardian) both die before they reach the age of majority.
While it can be unimaginable thinking about another person caring for your kids, it’s better you get to choose who they are than leaving it up to someone else to decide. There are many factors that go into choosing a guardian. Think about things like:
- Does your child trust this person?
- Does your child have a close relationship with this person?
- Is this person financially prepared for the responsibility of raising your child?
- Would this person be committed to raising your child the way that you’d like?
- Would this person cooperate with the people you’ve named as the executors of your estate to ensure that your child’s needs are taken care of?
- Where would your child live? Would this person move into your home or would your child move into theirs?
It’s a tough choice. After all, who better to take of your kids than… well…you?! But it’s crucial to have a backup plan in the event of a worst-case scenario that leaves both you and your partner unable to care for your children. For more information on how to choose a guardian, visit our Learn Centre.
Who should be my executor?
An executor plays a big role in your Will. An executor’s duties may include:
- Closing your bank accounts
- Paying your taxes and debts
- Helping sell any real estate property
- Pooling everything you own together and distributing them according to your Will
- Dealing with any legal problems that arise
- Communicating with your heirs on how the process is going
The best executor is someone who you not only trust, but someone with the practical, legal, and financial know-how to wrap up your affairs.
Do I want to leave specific gifts to people?
Before you divide the bulk of your assets, you can choose to leave specific things–like a watch or a car–to certain people. These gifts are taken off-the-top of your estate before the rest of your assets are distributed.
Do I want to leave a legacy gift to charity?
Leaving a gift to charity is a powerful way to make a huge impact on the causes you care about. Charitable donations in your Will also come off-to-top of your estate.
How do I want to distribute the rest of my assets?
After you document which gifts you want to give, you pool the rest of your assets together to split among your beneficiaries. You divide your assets by splitting the pool into portions—kinda like slicing a cake!
What about my digital assets?
Remember, you live in a digital age where things like your Twitter account, Dropbox, and email address are all considered assets so you want to make sure there is a digital assets clause in your Will to ensure your executor can deal with these assets after you pass away.
When do I want my children to get access to their inheritance?
If you have young children, you can decide at what age they get access to their portion of your estate. The default laws in most provinces are typically around 18 or 19. But, for most people, that is often too young of an age to be responsible for such a large inheritance. In your Will, you can specify the age you want your kids to be when they get their inheritance if it’s different from provincial law.
How am I going to write my Will?
Going to a lawyer’s office and shelling out hundreds or thousands of dollars used to be the only way you could write a Will. However, there are many more options available today.
There are DIY and online solutions available today for Canadians with basic estate planning needs. We dive into each method of making a Will in more detail later in this article.
Hot tip: You don’t need a lawyer to make a valid Will in Canada
This is probably one of the biggest misconceptions about estate planning out there today. Let’s be clear: You DO NOT need a lawyer to write a valid Will in Canada. Seeing a lawyer can be time-consuming and costly. And, the fact is, most Canadians have pretty straightforward situations and can complete a Will without getting a lawyer involved.
Having said that, there are some, more complicated situations where seeing a lawyer for legal advice is recommended. For example, if someone wants to exclude a spouse or child from their Will or if they want to do sophisticated tax planning.
Download the full Will Preparation Checklist.
3 ways to write a Last Will and Testament without a lawyer
Now that we’ve cleared that up, here are some other ways you can make your Will without a lawyer or ever having to step foot in a law firm.
Online estate planning service
A great option for anyone who needs a basic Will is to use an online service, like Epilogue. Epilogue was founded by experienced estate planning lawyers and offers comprehensive protection where some of the other options may fall short.
Platforms, like Epilogue, are typically pretty simple and straightforward. All you need to do is answer a series of questions and can have a Will done in as little as 20 minutes or so. There is little room for error with online Will platforms and they often come with detailed signing instructions to ensure it’s executed properly.
This type of online service is best for anyone who needs a basic Will. You should NOT use an online solution if you have a more complex estate or situation, for example:
- 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
In the above cases, it’s always best to seek legal advice.
For a Will to be legal in Canada it must be printed and signed (in ink) by you and two witnesses.
You can purchase a physical DIY Will kit at various locations across Canada. They are fill-in-the-blank style, paper documents with little to no room for customization. These are typically very inexpensive and are best suited for people who aren’t comfortable with online solutions.
DIY Will kits tend to treat everyone the same and leave no room for customization, so they aren’t the most ideal option. Plus, if you don’t get the Will witnessed correctly, it won’t be considered legal in the eyes of the law (which is basically the same thing as not having a Will at all!)
A Holographic Will is just a really fancy term for a handwritten Will and they are recognized as a valid form of a Will in all provinces except PEI. Holographic Wills are the only type of Wills that don’t require two witnesses to be valid. In order to make a holographic Will, you just need to put pen to paper. You must also sign it yourself.
Holographic Wills are obviously the most cost-effective, being practically free. However, as the saying goes “you get what you pay for.” Holographic Wills leave the most room for error and, unless you’re a seasoned tax and estate lawyer, it’s highly likely your Will will end up being deficient in one way or another as it is hard to adequately plan for all possibilities and use the appropriate legal phrasing in a handwritten document.
What does NOT go in your Will?
Your Will includes a lot of important information, as outlined above. But it’s equally as important not to include certain things in your Will. For example:
Life insurance policies:
Your life insurance policy should already list one or more beneficiaries. When you die, your insurance payout automatically goes to the beneficiaries listed in your insurance policy—without any direction from your Will.
Pension plan policies:
As with life insurance policies, pension plan policies also typically already have beneficiaries named.
Certain jointly owned property:
If you are a joint tenant of any asset (e.g. real estate property, or a bank account) your co-owner automatically gets 100% of the asset when you die. This is called the right of survivorship.
Gifts for pets:
Pets can’t legally own anything! If there is anything you wish your pet to have, such as money for food or their favourite dog bed, leave them to the person you named in your Will to take care of them.
Funeral and burial wishes:
Wills can take a long time to find after someone dies—and funeral arrangements can’t wait. Don’t put your funeral and burial wishes in your Will. Instead, write it down on a separate document and let your family and friends know where the document is and talk to them about your specific wishes.
Other important estate planning documents
A Last Will and Testament covers what happens to your estate and family members after you die. But there are other important documents to consider as part of comprehensive estate planning.
You may want to consider creating these documents at the same time you are writing your Will.
- Powers of Attorney
- Funeral and burial wishes
- Affidavit of execution
Powers of Attorney
There are two types of Powers of Attorney (more generally called, incapacity documents.)
- Power of Attorney for Personal Care – Also referred to as a Representation Agreement, Personal Directive, or a Health Care Directive, depending on your province.
- Power of Attorney for Property – Also called an Enduring Power of Attorney
Both Power of Attorney also needs to be signed in the presence of two witnesses who must sign them as well. There are slight variations in how POAs must be signed across provinces.
Power of Attorney for Personal Care
This Power of Attorney lets you name an “attorney for personal care” who will make decisions about your health care and end-of-life care if you’re incapable of doing so yourself.
These decisions can relate to your:
Power of Attorney for Property
This Power of Attorney lets you appoint someone (called your “attorney for property”) to make financial decisions for you and act on your behalf on all your financial affairs if you’re incapable of doing these things for yourself.
During any period of incapacity, your attorney for property gets:
- Access to your bank accounts and investments.
- The ability to manage your funds and use them to pay your expenses (e.g. rent and utility bills.)
- The responsibility to file your annual income taxes.
- The authority to sell real estate on your behalf if you need to move (e.g. to an assisted-care facility.)
Funeral & Burial Wishes
It’s a good idea to document your funeral and burial wishes in a separate document from your Will. Whether you want an in-ground burial or to be cremated, it’s important to record them in a document that is stored safely with your Will.
You can take things a step further and even do some pre-planning! Funerals are expensive and stressful events to plan so preparing (and paying) for some aspects of it in advance can take some of the burden off the shoulders of your grieving family members.
Affidavit of Execution
An affidavit of execution is not required by law but it’s highly recommended. An affidavit of execution is a specific type of legal document that one of your witnesses signs to confirm they were present for the signing and witnessing of your Will. Once an affidavit of execution is signed, the original Will is attached as Exhibit A.
As of August 1, 2020, virtual affidavit commissioning is allowed in Ontario via video-conferencing technology.
British Columbia is the only province that doesn’t use an affidavit of execution document.
Regardless of which option you choose, having a Last Will and Testament is better than not having one at all. If you die without a Will, you wouldn’t have gotten to do things like name an executor or guardian for your minor children. And there’s no guarantee your estate would get distributed according to your wishes.
Instead, you’re leaving those big calls up to the intestacy laws in your province and they may choose a friend or family member for those roles you wouldn’t have wanted.
As long as you’re the legal age to write a Will in your province (typically 18 years old or 19 years old) and of sound mind, you’re eligible to make sure you complete this very important legal document.