How to make a will – what you need to know
Author: Tom Drake
They say that there are only two guarantees in life: death, and taxes. If that's the case, it might surprise you to know that fewer than 50% of adult Canadians actually have a will. The number shrinks to about 10% for those under 35 years of age. Given that a will is such an important document, you'd expect more people to have one in place. Of course, one major risk of not having a will is that it leaves other people to decide what happens to your estate when you pass on. In order for this not to happen, you need a legal will.
Can I write a will myself?
The short answer to this question is yes, anyone can make their own will. However, doing so without some legal guidance or supervision is not recommended. That's why most Canadians should consider creating a will through a lawyer, or by using an online will kit. A lawyer has the expertise as well as the responsibility to make sure that your will is accurate, and that nothing is missing. If your estate is going to be somewhat complex ie. blended families, business and foreign property ownership, a lawyer is definitely the way to go.
For more simple, straight forward estates, an online will kit from a company such as Willful, or Canadian Legal Wills is a cost-effective, and accurate alternative.
Let's take a closer look at a few key ingredients of any will.
You must name an executor
When creating a will, one of the most important decisions you'll need to make is who your estate executor will be. An executor is a person responsible for carrying out the directives in the will. They must settle your financial matters, including paying off of outstanding debts and disbursing the residue of the estate to your beneficiaries, as per your wishes. It's a big responsibility and can be a time-consuming task, so you want to choose someone you trust, often a close family member. I also recommend that your executor is someone who lives nearby to you. Administering an estate from a long distance is not ideal, as it can be very difficult to make arrangements when an in-person meeting is required.
Power of attorney
In addition to the will document, I highly recommend that you create a power of attorney or POA. This assigns someone to make decisions on your behalf while you're still alive, should you be unavailable, have a life event, or become incapacitated in any way. Often, married couples will name their spouse as their power of attorney. For the very elderly, it's wise to name a responsible adult child or another, younger family member. Within the POA document, you can specify what powers your attorney will have, as well as any limitations. In addition to handling financial matters, a POA can have the ability to manage any healthcare decisions on your behalf.
Guardian of minor children
If you're a parent of minor children, you want to know that they will be cared for should something happen to you. Your will allows you to name a guardian for your children, someone who will look after them until they reach the age of majority. This is a big decision, so it's best to give some thought to it prior to sitting down to create your will.
Store your will in a safe place
When you pass away, your executor will need to work with an original or notarized copy of your will. A photocopy won't suffice. That's why it's incredibly important that you hold onto the original copies, and keep them in a secure location, preferably a safety deposit box, or safe. Your family should know where your will is kept, in case they need to access it in a hurry.
Update your will regularly
If you haven't yet made your will, the most important step is to get started as soon as possible. Even after your will is created, however, it's a good idea to revisit every couple of years, to see if changes need to be made. Making changes to a will doesn't usually cost a lot of money, and it ensures that the document will be current as changes occur in your life. For example, if you created your will while you were still single, it won't be of much use by the time you're married with a couple of kids.
What information do I need to make a will?
Whether you're paying a lawyer to prepare your will or you're creating your own online, I recommend that you prepare in advance by gathering important information that will need to be included, and giving some thought to the decisions you'll have to make. For example, you don't want to be sitting in front of your lawyer trying to decide who will care for your minor children. Time is money, especially in the legal profession. To help, here's a list of information to come prepared with:
- A shortlist of potential executors/powers of attorney
- A full list of the property you own ie. real estate, vehicles, insurance policies
- A listing of bank accounts, investments, debts, including where they are located
- Name of the guardian(s) of any minor children
- A list of the friends and/or loved ones you will be leaving things to (beneficiaries)
- Any final wishes regarding funeral, cremation vs. burial etc.
- A copy of your previous will, if one exists.
What is a blank form will kit?
For many years, one of the only options for Canadians who wanted to create their own will involved filling out something called a blank form will kit. They are not designed to accommodate anything beyond the most basic estate. If you plan to transfer 100% of your possessions to your spouse, a blank form will kit might suffice. If not, you could run into problems. They are also very confusing. There is no advice component. They're a generic form with a lot of blank space, and little guidance on how to properly fill out the document. Because of this, blank form will kits can be easily challenged in court by parties who may interpret your wishes much differently than you intended.
When you should use a lawyer for your will
For most Canadians, online will kits are a perfectly viable solution for making a will. If nothing else, the convenience and affordability should remove most of the objections people have about dealing with estate matters. That said, there is no full substitute for dealing in person with a legal expert. If your estate involves anything complex ie. blended family, ownership of a corporation or foreign property, you should have your will completed by a lawyer. They will make sure there are no gaps in your estate planning, and that your wishes are fulfilled after you pass away.
What happens if I don’t write a will?
If you don't write a will, it means that you'll have no say over what happens to your estate. In fact, the government could decide how your assets are divided. It also opens up your estate to the potential for disputes between family members. Many once close-knit families have been torn apart over estate matters when everyone has their own opinion as to how things should be divided.
Having a will saves time
Even if you have a will, it will take time for your executor to settle your estate. There's a lot of paperwork involved, and regardless of the matter they are dealing with, be it real estate, banking, or dealing with the government, most will encounter plenty of red tape along the way. If there is no will, however, the process can drag out much longer, meaning that your assets could be frozen for months, or even years.
If you are without a will, it means that you have no executor to manage your estate. In this case, another person has to step forward and request something called Letters of Administration. This is similar to a Grant of Probate and gives this person the ability to access the accounts and property held in the deceased's name, and pay any taxes or debts owing, and disburse any remaining funds. This process takes time and can prevent estate assets from being distributed for a prolonged period. This could cause undue hardship for the loved ones you have left behind.
Writing a will in Canada – summary
The vast majority of adult Canadians should have a will. There's simply too much at stake to avoid this financial responsibility. It's the only way you can ensure your assets are properly distributed after you pass away. Who will be the executor of your estate if you don't assign one? Parents, who will be the guardian of your children if you're no longer around? Thankfully, wills are more affordable and accessible than ever with the advent of the online will kit, while a lawyer remains the best option for wills if a person has a complex estate. No matter which option you choose, the one piece of advice I can give is to not delay – address your estate planning needs today.