Creating a last will and testament is one of the most important estate planning tasks that all Canadian adults should complete. A last will clearly outlines your final wishes and provides instructions on how you want your assets distributed after you pass away. Without a will in place, the government gets to decide who inherits your property according to a standardized formula, which may not align with your preferences.
Having an up-to-date will prevent unnecessary family disputes, ensure your children and pets are cared for, and allow you to leave gifts to charities you support. It also spares your loved ones the hassle of navigating complex legal processes during an already difficult time. This guide will provide you with everything you need to know about creating valid wills in Canada.
What is a Last Will and Testament?
A last will and testament, often simply referred to as a will, is a legal document that formally outlines your instructions fot thr management and distribution your estate and dependents after your death. It represents your last words and should outline the following:
- Who will inherit your assets and possessions (your beneficiaries)
- Who should take care of any minor children or pets (guardianship)
- Your preferred funeral arrangements
- Who will oversee and manage the distribution of your estate (your executor)
Your estate encompasses all your assets, including property, finances, vehicles, investments, jewelry, art, and any other items of value. Having a will ensures your estate is handled as you intended, taking care of your loved ones even when you no longer can.
Why Do I Need a Will in Canada?
Having a will is crucial because it is the only way to guarantee your personal wishes for your property and dependents will be carried out after your death. Below are 7 compelling advantages of having a last will and testament in Canada:
- Ensures your final wishes are fulfilled: Without a will, you lose control over what happens to your estate. With one, you can ensure your assets go to your chosen beneficiaries and heirs.
- Appoints guardians for dependents: For those with young children or pets, having a will allows you to designate guardians to provide care if you and your spouse pass away before they reach adulthood.
- Avoids disputes between family members: A clear will helps prevent potential infighting or resentment over your estate and belongings by explicitly outlining how you want your property and assets divided up.
- Allows gifts to friends and charities: You can leave a legacy gift or donation for a charitable cause, research foundation, or non-profit organization you care about. The last will and testament allow you to outline exactly how you want residual assets handled.
- Outlines funeral and burial plans: Your will is where you can define your wishes for end-of-life ceremonies and burial or cremation plans. This spares your family from having to guess your preferences.
- Prevents government involvement: Without a will, complex legal processes dictate how your assets get distributed, often not how you would have wanted. Intestacy laws apply a standard formula based on familial heirs.
- Provides peace of mind: Knowing you’ve taken care of your family even after you’re gone gives great comfort. A will is truly a final act of love.
Having a clear plan in place for all of the above provides peace of mind, knowing your affairs will be handled as you intend, avoiding family disputes and unwanted hassles at an already difficult time.
What Happens if You Do Not Have a Last Will?
If you die without having a legally valid will, you are said to have died “intestate.” When this happens, inheritance laws will determine how your estate is distributed. Your estate will go through a long probate process during which provincial governments apply a standardized distribution formula, regardless of your personal preferences.
By creating a will, you can bypass the default rules of Canadian inheritance law and ensure that your assets are distributed according to your wishes, avoiding unwanted outcomes. That’s why having a will is so important. But it’s not just about who gets what – you also need to think about what happens to your debt when you die.
When Should I Make a Will in Canada?
Ideally, Canadian adults should make a will as soon as they turn the age of majority in their province, which is 18 or 19, depending on location. While young adults may not have extensive assets yet, a will allows them to name guardians for any dependents, outline funeral preferences, and share heirlooms like family jewelry or keepsakes.
Major life events or changes that should trigger you prepare a will include:
- Reaching the age of majority in your province
- Getting married or entering into a common-law relationship
- Going through separation, divorce, or the end of a common-law partnership
- Having or adopting children
- Becoming a legal guardian or caregiver for a minor
- Having major property like a house, condo, or vacation home
- Coming into a large inheritance or acquiring other valuable assets
- Wanting to provide for a new person in your life, like a grandchild
What Should Be Included in a Will?
While specific will content depends on your individual life situation, the following outlines common components to consider:
- Your assets: All your property, finances, investments, vehicles, etc. Make a comprehensive list.
- Your debts: Loans, mortgages, credit cards, taxes owed. List all debts and who they are owed to.
- Beneficiaries: Full legal names and current addresses of those inheriting your assets. Keep updated.
- Executor: The person who will carry out your wishes. Choose someone responsible and organized who is willing to serve.
- Guardianship: Instructions for who should care for any minor children or pets if you pass away before they are adults. Ensure guardians are willing to keep up with life changes.
- Funeral/burial wishes: Outline any preferences for cremation, type of funeral service, organ donation, and related requests. These instructions provide helpful guidance for your loved ones.
- Division of reserve land: For First Nations individuals, instructions are provided on how any reserve lands you own should be divided. Recipients must be members of your First Nation to legally receive land. Consult your band council for specific advice.
- Gifts to friends/charities: List any specific heirlooms, money amounts, or residual assets you wish to gift to individuals or charitable causes after other beneficiaries and debts are accounted for.
Elements like listing assets, naming guardians, and outlining funeral wishes are important, even for young adults with modest estates. Using online services can make the process easy and affordable.
Bank accounts are one of the most common assets to include in your will. Wondering how they are handled after someone passes away? Learn more about what happens to bank accounts after death in Canada.
How To Create a Legally Valid Will in Canada
To create a legally valid will in Canada, the document must be in writing, signed by you (the testator), and state your intention for it to take effect after your death.
Canadian law recognizes several types of wills, each with different creation requirements. The validity of each type can vary by province:
- Write your own holograph will: A handwritten will dated and signed entirely in your own handwriting. No witnesses are required, but it is better if you have two adults witness your signature.
- Will made in the presence of witnesses: This is the most common and widely accepted form. The will is typically typed or printed and must be signed by the testator in the physical presence of two qualified witnesses, who also sign the document.
- Notarial will: In Quebec, notaries can provide valid will services and advice. Recommended for complicated estates. It is then registered with the Chambre des notaires du Québec, which makes it difficult to contest and exempts it from the probate process.
What Are the Legal Requirements for a Will to be Valid?
No matter the types of will you choose, ensure your will meets your province’s legal requirements. For a will to be considered legally valid outside of Quebec’s notarial system, it generally must meet a set of core criteria. These are designed to confirm the will reflects the testator’s true intentions:
- The will must be in writing.
- It must be signed by the testator.
- The testator must sign in the presence of at least two witnesses (unless it is a holograph will).
- The witnesses must also sign the will in the testator’s presence.
Who Can Act as a Witness?
The witnesses should not be named as beneficiaries in your will or be the spouses of any beneficiaries. Using a beneficiary as a witness can invalidate the gift to that person. Acceptable witnesses include legal-aged friends, neighbours, coworkers, or other adults without any conflict of interest.
Can a Will Be Signed Digitally?
Currently, only the province of British Columbia permits wills to be signed, witnessed, and stored entirely online, which is especially helpful during pandemic restrictions. In all other Canadian provinces and territories, a will is not legally valid unless it has a physical wet signature – meaning it is printed and signed in ink by both the testator and their witnesses.
Following proper signing and witnessing protocols prevents challenges to your will later on. Once signed, your document stands as your legal last will and testament. Adhering to your jurisdiction’s legal formalities when signing gives you maximum protection. Use witnesses whenever possible to enhance legal standing.
Do I Need A Lawyer To Create A Legal Last Will And Testament?
No, Canadian law does not require you to use a lawyer or notary to prepare a legally valid last will and testament. Many people with straightforward estates can create a valid will on their own. You can even write your will on a blank piece of paper as long as it is signed and witnessed properly.
Hiring a lawyer is advisable if your estate is complex or if you require specific legal advice. A lawyer’s expertise is particularly valuable in situations such as:
- You own a business or have corporate assets.
- You own property outside of your province or country.
- You have a blended family with children from previous relationships.
- You wish to create a trust for a beneficiary with special needs.
- You want to disinherit a spouse or child, which can be legally challenged.
For those with simpler estates, there are several cost-effective alternatives to hiring a lawyer. These options can guide you through the process while ensuring legal compliance.
- Online Platforms: Services like Willful offer a customizable alternative to static forms, asking questions about your life situation to generate lawyer-approved documents tailored to your province.
- DIY Will Kits: These pre-printed forms or templates can be purchased from various sources. While inexpensive, they are not customized and may not account for unique personal circumstances.
The bottom line is that a lawyer-prepared will offer peace of mind, but it is not required in most typical cases. Evaluate your situation and options carefully.
How Can You Use a Template to Create a Will?
Using an online DIY will kits can make writing your last will much easier. Rather than starting from a blank page, a will template provides the necessary legal clauses and language. It just needs your specific details filled in. The template will guide you to include information like:
- Your assets and instructions for distribution
- Naming guardians for any dependents
- Outlining your preferred funeral arrangements
- Choosing a reliable executor
Once completed, the template will generate a comprehensive will tailored exactly to you. You can then download or print and sign it according to your province’s requirements. However, DIY will kits may not be suitable for more complex situations, and mistakes in execution can result in an invalid will.
What Should You Do After Your Will Is Written?
After your will is signed and witnessed, you must store it in a safe, accessible place and plan to review it periodically. A will is useless if your executor cannot find it, and an outdated will can create as many problems as having no will at all.
Where Should You Store Your Will Safely?
Your original will should be stored somewhere secure where your executor can access it after your death. Good options include:
- A safety deposit box at your bank – Share access instructions with your executor or loved ones in case of emergency. Ensure they can access it
- upon your death.
- A fireproof safe or lockbox at your home or office – Ensure your executor can access the location if needed. Inform them of the location.
- Your estate planning lawyer’s office – Many lawyers will store your will securely for a small fee. Often very safe but less accessible for amendments.
- With a trusted relative or your named executor – Speak to them first and ensure they can keep it in a secure location. But ensure accessibility.
Wherever you keep the original, inform at least your executor or a close family member of the location. If the document cannot be accessed, you may be considered to have died intestate against your wishes.
When and Why Should You Update Your Will?
After any major life change already mentioned, take the time to review and update your will to prevent unintended outcomes. Even for simple or modest estates, having a will ensures your wishes are followed. At a minimum, thoroughly review your will every 12 months to ensure it’s fully up to date and reflects your current wishes.
Finally, it is helpful to understand the official process that brings your will to life after you are gone.
How Is a Will Processed After Death?
After you pass away, your will is used as the primary guide for your executor to settle your affairs through a probate process – the formal legal process where a court confirms the validity of the will and officially grants the executor the authority to act on behalf of the estate. The process adds time and cost to the settlement, but it is a necessary step for most wills made in the presence of witnesses and holograph wills.
The executor is responsible for carrying out all the wishes you have outlined, from paying debts to distributing assets. While the exact steps can vary, the process generally takes a year or more and involves:
- Distributing assets: Once all debts and taxes are settled, the executor distributes the remaining property to the beneficiaries as specified in the will.
- Securing assets: The executor takes control of all estate property.
- Paying debts: All outstanding liabilities, including funeral expenses, are paid from estate funds.
- Filing taxes: The executor prepares and files a final personal tax return for the deceased, as well as a T3 Trust Income Tax and Information Return for the estate itself.
- Obtaining clearance: The executor applies for a Clearance Certificate from the Canada Revenue Agency to certify that all taxes have been paid.
Discuss storage locations with your executor and chosen beneficiaries to ensure no barriers exist to enacting your wishes.
Key Takeaways
Here are 10 important tips from estate lawyers about making your will without an attorney:
- Make sure your document meets your province’s legal requirements for execution. This usually involves proper signing and witnessing.
- Carefully choose your executors and guardians. Confirm they are willing and able to serve if needed.
- List all major assets, but avoid overly specific details – those can go in a separate memo.
- Name both primary and alternate executors/guardians in case your first choice is unable to serve.
- Outline funeral and burial wishes to ease the burden on your loved ones. Planning for funeral costs is another important consideration when creating your will. (For those concerned about funeral costs, various government funeral assistance programs offer assistance with end-of-life expenses. These programs can provide much-needed financial support during a difficult time.)
- Store your will safely, but ensure your executor can access it. A safety deposit box is a good option.
- Update your will whenever major life events occur. An outdated will can cause issues.
- Consider using online services for straightforward estates. They guide you through the process.
- If opting for a DIY will kits, read the instructions carefully to ensure full legal compliance.
- For complex assets or family situations, professional legal advice may be recommended.
Having a current last will and testament is one of the most important financial and estate planning tasks you can complete for your loved ones. It ensures your final wishes are carried out, provides care instructions for any dependents, and helps prevent disputes between family members down the road. Make reviewing and amending your will a priority anytime you experience major life events to keep it valid. Taking the time to create a plan gives your family the gift of clear instructions and an easier time during an already challenging new reality.
FAQs on Last Wills and Testaments in Canada
What is the difference between a last will and a living will?
A last will distributes your assets after death, while a living will provides healthcare instructions if you're incapacitated. They serve different purposes but are equally important estate planning documents.
Can I write my own will without a lawyer in Canada?
Yes, you can create a valid holographic (handwritten) will or use a DIY will kit. However, for complex assets, having a lawyer ensures your will is legally sound. Most basic wills can be DIY.
How much does it cost to make a will in Canada?
Costs range from $100-$500 for DIY options. Hiring a lawyer can cost $300-$1500+. Fees depend on your province, assets, and will complexity. Simple wills can be very affordable.
Should my will be notarized in Canada?
Notarization isn't required for a will's core validity, but having a notary witness's signature provides added legal evidence if the will is contested. Notarization is recommended but optional.
Is a life insurance policy part of my will in Canada?
Life insurance proceeds go directly to the named policy beneficiary, bypassing your will's instructions. Your will governs assets like bank accounts, property, cars, investments, etc.
Is my will still valid if I move to a new province in Canada?
Maybe. Laws vary by province, so it's wise to update your will to align with your new province's regulations when you move. Consulting a local estate lawyer can help determine validity.
Can my will be contested in Canada?
Yes, any will can potentially be contested, but careful drafting and execution help minimize will disputes. Grounds are unsound mind, undue influence, duress, or situations where heirs feel mistreated.
What happens if my executor dies before me in Canada?
Your will should name at least one alternate executor in case your first choice cannot serve. If no alternates are named and the executor dies first, probate courts will appoint an administrator to settle your estate.
How can I make sure my digital assets are included in my will in Canada?
List all digital assets and provide login info to your executor. Or use a digital estate planning service to store details securely. Add clauses permitting your executor access to digital property.
Who inherits if all beneficiaries die before the testator in Canada?
If all named beneficiaries predecease you, assets go to contingency beneficiaries like parents, siblings, or more distant relatives under intestacy laws. A residual beneficiary clause prevents this unintended outcome.
