Writing a last will and testament is a crucial part of estate planning. When written correctly, a will explains how to divide your assets when you pass away. It’s important to understand how to properly write a will before getting started, so that your wishes will be honored. If you die without a properly written will, the government may ultimately decide how your assets are divided.
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What is a will?
A will is a legally-binding document that details how you want to divide up your assets and property upon your death. Each province and territory has its own estate laws that govern how a will can be drafted, and what it must or must not contain.
Why should I write a will?
Life events that generally signal that it’s a good time to make a will include marriage, buying a house, having a child or a deterioration of your health. Basically, as soon as you have an asset that you really value and that you want to ensure goes to someone you love, it may be time to write a will. Indeed, a will is the only foolproof way to ensure your possessions are divided according to your wishes once you die.
You’re not legally required to have a will, but if you die without one, it’s not your family or loved ones who will control how your assets are divided, but rather the courts.
Each province and territory has its own unique estate laws that govern how someone’s money, property and other valuables are divided if they die intestate (without a will). In fact, if you and your spouse die without a will, the courts will even decide who becomes a guardian to your dependent children.
What is included in a will?
A will usually details your assets and how you want those assets divided among your beneficiaries. A will should also name an executor (or executors), which is the person who will be in charge of managing your will, paying estate taxes, ensuring all the beneficiaries receive their inheritance and more.
Your will should also include information about trusts you may have set up for any dependents and, if relevant, who you would like to be the guardian of your children.
You can also include any charitable donations you want to make. And if you have a cherished pet, you can use your will to name a pet guardian and set aside money for the animal’s care.
How to write a will
In Canada there are several ways to write a legally-binding will.
1. Handwrite your will
The easiest and cheapest (but also most easily contestable) will is a handwritten version, also known as a holograph will. You simply write out your wishes in your own handwriting and sign and date it. The problem with a handwritten will is that it’s not legally binding in all provinces, and it’s very easy to make mistakes or overlook essential details, such as creating trusts for minor children.
2. Use a basic DIY will kit
Another cost-effective option is to buy a DIY will kit with forms that you fill out. While this option is legal in Canada, will kits are not customizable and therefore aren’t good for complex estates. DIY will-writing kits may not include documents for special concerns like trusts for underage children.
Because they are intended as a one-size-fits-all solution to estate planning, it’s very easy to make errors or unintended exclusions with a will kit. The documents must be signed and overseen by witnesses (rules for witnesses may vary by province). If there’s improper witnessing or any errors in the will, the document is then open to dispute.
3. Use an online will service
There’s a growing variety of online will services in Canada. Online wills tend to be more comprehensive and offer more customization options than a DIY will kit. Some even offer additional estate planning services like setting up a power of attorney for your finances and health care. Some may even offer to have your will reviewed by a professional estate lawyer for an additional fee.
4. Hire a lawyer
If you want a legally-binding will that addresses all of your unique concerns and circumstances, hiring an estate lawyer is your best option. It’s also your most expensive option, with the cost of a lawyer-prepared will ranging anywhere from $400 to more than $1,000, depending on the complexity of your estate and where you live. Arguably, a professionally-drafted will does, however, offer the most peace of mind because a lawyer can advise you on all the complex issues like provincial estate laws, tax considerations, choosing an executor, rules about beneficiaries, trusts and more.
Can you write your own will?
In Canada you can write your own will either by creating a handwritten will on your own or by using a will kit or an online will service. However, by making your own will, you run the risk of making significant errors that would render the document void or more easily contestable.
What should you not put in your will?
Funeral plans don’t usually belong in a will because they are not legally-binding. Other assets that should not be included in a will are things like registered bank accounts, like RRSPs and TFSAs, and insurance policies (note that Quebec has different rules). That’s because when you apply for an insurance policy or registered account you will be asked to name a beneficiary separately. The designated beneficiary on these plans will usually trump any beneficiary you name in your will.
What happens if I don’t have a will?
If you don’t have a will, the estate laws in your province or territory of residence will govern how your property and assets are divided up. While many people assume their loved ones will know their wishes and will divide their assets accordingly, it’s the jurisdictional laws and the courts that determine what happens to your money, possessions, property and potentially even your children, if you die intestate.