Last Will and Testament in Canada: Everything You Need to Know

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 communicates your wishes regarding your estate and dependencies 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.

Last will and testament allow you to make important decisions like:

• Choosing who will inherit your home, bank accounts, investments, and other valuable assets.
• Deciding who should receive sentimental items like family heirlooms, art, or jewelry that you want to pass down.
• Appointing a trusted person to act as executor of your estate, meaning they’ll be responsible for gathering your assets, paying debts, and distributing inheritances.
• Naming guardians for any minor children or pets to provide care for your dependents if you pass away before they are grown.
• Outlining your wishes for end-of-life ceremonies and burial or cremation plans.
• Providing gifts or donations to charities, causes, and organizations you care about.
• Preventing unnecessary disputes between family members over your estate and belongings.

Having a clear plan in place for all of the above provides peace of mind, knowing your affairs will be handled how you intend.

Why Do I Need a Will in Canada?

There are 7 compelling reasons to create a last will and testament in Canada, including:

• 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.

Inheritance laws in Canada determine how your estate is distributed if you die without a will (intestate). These laws vary by province but generally prioritize married spouses and biological or adopted children, often excluding common-law partners and stepchildren. By creating a will, you can bypass the default rules of inheritance law and ensure that your assets are distributed according to your wishes, avoiding unwanted outcomes.

Having a plan in place for the above scenarios can prevent unnecessary family disputes, unintended outcomes, and unwanted hassles at an already difficult time.

What Happens If I Die Without a Will in Canada?

If you die without having a legally valid will, you are said to have died “intestate.” When this happens, your estate will go through a long probate process during which provincial governments apply a standardized distribution formula, regardless of your personal preferences.

Consequences of dying intestate include:

• Assets may not go to a common-law spouse or stepchildren, as they are not heirs under intestacy laws. Married spouses and legal dependents like biological or adopted children are typically prioritized first.
• Temporary court-appointed guardianship of minors until long-term arrangements can be made. You have no say in who will care for your kids if you don’t appoint guardians.
• Your estate will be dealing with added administrative work during an already challenging time. The complex legal processes often take many additional months or even years longer to fully settle your affairs and debts under intestacy.
• Assets like RESPs you’ve saved for your children’s education could be lost if any outstanding creditor claims take precedence during probate. Without a will, saved education funds could go to pay debts first.
• Friends, charities, and causes you care about will receive nothing, as only familial heirs inherit under standard intestacy laws. Your charitable wishes will be ignored.

The consequences of not having an up-to-date will can be quite severe for your loved ones. Work with an estate planning lawyer or service to create one soon.

Who Can Make a Will in Canada?

In Canada, any person considered to be of “sound mind” can make a will once they’ve reached the age of majority in their province, which ranges from 18 to 19 years old, depending on location. While young adults may not have extensive assets yet, a will allows them to outline funeral wishes and appoint guardians for any dependents they may have.

You do not need to own property or have children to make a legally valid will. It is recommended for virtually all adults to have an up-to-date will, especially if you:

• Have any dependents like small children or pets
• Own valuable assets like property, houses, or cottages
• Have financial assets like investments, retirement savings, or an inheritance
• Operate a business or own a share in one
• Wish to leave a donation to a charity or non-profit
• Want to prevent disputes over your belongings or estate

Even for simple or modest estates, having a will ensures your wishes are followed. Online services will make it easy and affordable.

Curious about what happens after a will is executed? Check out our full review Receiving an Inheritance in Canada.

Do I Need A Lawyer or Notary To Prepare A Legal Last Will And Testament?

In Canada, the law does not require you to create your will with a lawyer or notary. While a lawyer can provide legal advice if needed, many people have simple and straightforward estates that do not necessitate legal assistance.

There are several legal ways to create your will, with or without a lawyer. You can even write your will on a blank piece of paper as long as it is signed and witnessed properly. 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, read instructions carefully to ensure full legal compliance.

·       For complex assets or family situations, professional legal advice may be recommended.

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.

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 to review an existing will or prepare one 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
• Purchasing major property like a house, condo, or vacation home
• Coming into a large inheritance or acquiring other valuable assets
• Noticing your existing will is outdated and no longer reflects your wishes
• Wanting to provide for a new person in your life, like a grandchild

After any major life change, take the time to review and update your will to prevent unintended outcomes. Amending your will is much easier than having an outdated one. Annual reviews are also recommended.

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.

Keeping your will comprehensive and up-to-date prevents unnecessary complications. Review it at least annually and make amendments whenever life changes occur.

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 Do I Make a Will in Canada?

While hiring an estate planning lawyer is always an option, here are 5 additional ways to create a legally valid DIY will in Canada:

• Online will services: Affordable and convenient options like Willful.com that help you easily customize documents in as little as 15 minutes. Online questionnaires guide you through the process.
• Write your own holograph will: A handwritten will dated and signed entirely in your own handwriting. No witnesses are required, but better protection if you have two adults witness your signature.
• Store-bought will kits: These come with templates, instructions, and witnesses for signing. Good option for simple estates, but read carefully to ensure proper execution and legal compliance. Kits are available online or at office supply stores.
• Estate lawyer: Best for those with complex assets or unique family dynamics needing specialized legal advice. Provides personalized guidance and maximum legal protection but is more expensive.
• Notaries: In Quebec, notaries can provide valid will services and advice. Recommended for complicated estates.

No matter the path you choose, ensure your will meets your province’s legal requirements and that your signature is witnessed if required in your region. Store the original in a secure location like a safety deposit box and review it at least annually.

Younger adults or those with straightforward estates can often create DIY wills affordably, while more complex situations benefit from professional legal services.

How Can I Use a Template to Create My Will?

Using an online will template can make writing your last will much easier. The template will walk you through questions to customize your will to your specific situation.

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.

DIY will kits are another affordable and convenient option for creating a will. These kits often include templates and step-by-step instructions, making them an attractive choice for those with simple estates. However, like templates, DIY will kits may not be suitable for more complex situations, and mistakes in execution can result in an invalid will. Learn more about DIY Will Kits and Templates in Canada.

While templates work for most basic wills, those with complex assets or family dynamics may benefit from a lawyer’s expertise. However, for most people, a template provides an affordable DIY approach to creating a legally valid customized will.

What Are the Will Signing and Witness Requirements in Canada?

For a will to gain legal validity in most areas of Canada, you must sign the document in the presence of at least two adult witnesses, who also sign to affirm they witnessed you signing it. The witnesses should not be named as beneficiaries in your will or be the spouses of any beneficiaries. Acceptable witnesses include legal-aged friends, neighbours, coworkers, or other adults without any conflict of interest.

British Columbia allows for virtual witnessing of a will signing using video conferencing, which is especially helpful during pandemic restrictions. Any Canadian province also recognizes that handwritten holographic wills signed and fully dated without witnesses are legally valid.

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. If you fail to meet your provincial requirements, your wishes may not be followed.

Adhering to your jurisdiction’s legal formalities when signing gives you maximum protection. Use witnesses whenever possible to enhance legal standing.

Where Should I Keep My Original Will in Canada?

Choosing a safe yet accessible place to store your signed original will is key to ensuring your executor can access the document upon your death and enact your wishes. Recommended storage 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. Prioritize safety but share access instructions.

In some situations, loved ones may need to reference an obituary to gather information about the deceased or notify others. Offering support to grieving loved ones is equally important, and writing a thoughtful condolences message can provide comfort during a difficult time.

Discuss storage locations with your executor and chosen beneficiaries to ensure no barriers exist to enacting your wishes.

When Should I Update or Change My Will?

Your will should evolve as your life and relationships change. At a minimum, thoroughly review your will every 12 months to ensure it’s fully up to date and reflects your current wishes. However, many major life events will require immediate will updates, including:

• Marriage or entering a common-law relationship
• Separation, divorce, or ending a common-law partnership
• Birth or adoption of a child
• Children growing up, becoming adults, or passing away
• Grandchildren being born
• Change of permanent address
• Purchase of significant new property
• A named guardian, executor, or beneficiary moving away or passing away
• Changes in asset ownership due to an inheritance, gift, or other acquisition
• Dependents like minor children or pets need care provisions
• Charitable causes you wish to support

Take the time to review and update your will after any major life change to prevent unintended outcomes or disputes over assets you no longer own. Amending your will is much easier than having an outdated one that doesn’t reflect your current wishes and life situation.

Treat your will as a living document and update it at least yearly and whenever your relationships or assets change.

Summary

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. While young adults may not think they need a will, outlining funeral preferences and naming guardians for pets brings peace of mind starting early. 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 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.