What Goes Into A Will?
Making a Will brings you one big step closer to protecting your family and loved ones. If you’re above the legal age in your province and mentally capable (“of sound mind”), you can (and should) make your Will (also known as a Last Will and Testament.) The legal age varies between 16 and 19 depending on the province you’re in:
What goes into my Will?
A Will is unique to every individual. It is a legal document expressing how you want to distribute your assets and who should care for your dependents. But all Wills give you the ability to do the following things.
Distribute any gifts and assets to beneficiaries
One of the main sections of your Will sets out how you want to distribute your assets when you die.
You will never be asked to list everything you own and all the money you have down to the penny. In this section, you’ll only list the things you want to give to specific people—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 gets added into a pool of funds, including everything you didn’t list as specific gifts, like possessions, bank accounts, and real estate property. You then can say who gets which portion (or percentage) of this pool of funds.
Appointment of a guardian for your minor 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 children in the devastating (but unlikely) event both you and your spouse die while they are still minors.
When you think about who would be best suited to be your children’s guardian(s), there are a few questions to ask yourself.
Will the person 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 children’s potential guardian shares your values and beliefs on how to raise kids.
Will they 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 choosing a guardian.
Does your potential guardian know what you’re asking them to do? Do they agree to take on the responsibility?
Always talk to your guardian to let them know you want them to care for your children if you and your spouse both die. Also, make sure they are willing and able to take on that role if necessary.
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 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.
Appoint an Executor
An executor is a person you choose to wrap up your affairs and make sure the wishes in your Will are carried out.
Executors gather all your assets and distribute them to the beneficiaries and charities you choose. 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 financial know-how involved with executing 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.
Date, sign, and witness the Will to make it valid
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:
1. Print your Will (you need a physical, paper copy.)
2. Date and sign the Will in the presence of two witnesses (your witnesses shouldn’t be beneficiaries or spouses of beneficiaries.)
3. Have your 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 should never go into a Will?
A Will should be a comprehensive document covering all the assets you want to give away. But there are a handful of things you should never include in a Will:
- Jointly owned accounts, businesses, and properties
- Life insurance policies
- Retirement plan policies
- Gifts and money for pets
- Funeral and burial wishes
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
Life 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 and overrides anything you might include in a Will.
Including a life insurance or retirement plan policy in your Will is an empty gesture, as the payout goes directly to that beneficiary, and not into your estate.
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.
Arrangements for a dependent with special needs
Arrangements to take care of a dependent with special needs should not appear in a Will.
Instead, consider setting up a special kind of trust. A trust is a legal tool that lets you appoint someone (the “trustee”) to hold money for the benefit of another person (the “beneficiary”).
A trust for someone with special needs is called a Henson trust. A Henson trust lets you give a disabled person income without impeding their eligibility for social benefit programs.
The law around these trusts can get complicated—it’s a good idea to see a lawyer about setting one up.
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 a good idea to document that separately.
To have a comprehensive Will that will protect your loved ones long after you’re gone, it’s important to know not only what does go in your Will, but also what doesn’t.