How to write a will in Canada

01 14, 2021

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Nobody likes to think about lying on their deathbed. But not thinking about it will not make life last forever. In fact, avoiding it can often lead to messy scenarios, where the family is left without guidance on how to organize the next steps - or, in other words, without a will.

We know this is not a pleasant topic. But have you thought about who will inherit your home after you pass away? Who will take care of your pension funds? Or who will be the guardian of your precious stamp collection?

According to a survey, half of Canadians (50 percent) do not have a will, and 39 percent have not discussed estate planning wishes with their family members. It is undeniably a very unpleasant matter to discuss. But not doing so can cause immense emotional turmoil for the family and even unnecessary animosities.

Whether you are in your 40s or 80s, setting up your last will is something you should be considering, especially if you hold many assets. Estate planning is an essential step in making sure that your things will be managed according to your wishes and that no one can interfere with your instructions.

Conflict over inheritance is very common, especially if there is a business involved or valuable personal property, such as houses or valuable collectibles. Therefore, having a will that clarifies what should happen to your money, possessions and investments, is the easiest and fastest way to guarantee that everything is rightfully handled. Besides, you surely don't want a judge deciding your estate's fate.

What is considered a will in Canada?

Before diving further into the matter, let us assess the first big question: what exactly is considered a will in Canada? As explained in the Government of Canada’s official website, “a will in Canada is a legal document that says how you want your estate to be divided once you die. Your estate includes what you own (called assets) and what you owe (called liabilities).”

There are two kinds of wills in Canada: a formal will and a holographic will. A holographic will is the classic do-it-yourself will, all handwritten. This type of will does not need to be witnessed or notarized, which often leads to validation issues. Besides, some provinces and territories (like British Columbia or Nunavut) do not recognize it as a legal document.

A formal will is typewritten. To be valid, it must be signed by the person making the will in front of two witnesses. It is advisable to have a lawyer preparing it, to make sure it complies with the provincial and territorial laws.
If you live in Quebec, you can also opt for a notarial will. In short, it is prepared by a notary and signed before him and a witness.

What makes a will valid in Canada?

Leaving a will is one of the most important things you can do for yourself and your family. However, it is just as essential to guarantee that the will is valid in Canada and executed according to your provincial laws. These are the basic rules it should follow:

  • Be executed according to the provincial or territorial laws (it's worth reminding that each province and territory has its particular rules and regulations);
  • Be executed according to the nature and extent of the property the testator owns;
  • When writing it, the testator must be over the majority's age in his province and of sound mind. Exceptions may be made for younger people if they are in the military or if they are married, for instance;
  • If typed, the testator must sign it with two witnesses, and they must sign to confirm they have witnessed the signature. These witnesses cannot be a named executor or their spouse and cannot be a designated beneficiary or their spouse.

What about online wills?

In Canada, online wills and will kits are legal everywhere except in Quebec. These kits offer affordable estate planning, making the whole experience seemingly simpler and faster. However, there are some drawbacks you should be aware of. For example, these online tools are not designed to accommodate anything non-standard. On top of that, some providers do not give enough advice on how to correctly complete the document, which can make it confusing for some people.

In short, an online will kit isn’t for everyone, which is why it is recommendable that you assess your situation before choosing this method. Especially if you have an atypical living and family situation (such as a blended family or shares of private corporations), nothing can substitute professional advice.

When should you write your will?

Estate planning often falls to the bottom of people's priority list, especially when they are still young and healthy. But it is important to remember that wills are not just for those who are getting older.
If you die without one, the law states that you have died intestate, which means you left no instructions on how to distribute your property. In these circumstances, the government will do the honours and distribute your estate to your surviving relatives, according to your provincial or territorial law.

If you want to avoid that (and all the conflicts, delays, and expenses it generally involves), you should start writing your will as soon as possible, regardless of your age.

Although there are many triggering events that signal to an individual that it could be time to organize their estate (like a severe disease or advanced age), there is no such thing as an"official" moment to prepare it. In Canada, a will is, after all, a simple way of being prepared for life’s unpredictability.
If you have a significant estate and want it to be distributed according to your intentions, there is no better time than now to start preparing this irreplaceable document.

How to make a proper will in Canada

Depending on your personal and financial circumstances, there are many factors to consider when making a will. However, these are the main steps you should follow to handle it the right way:

Prepare your estate

First, draw up a list of all your property: real estate, retirement plans, investments, vehicles, jewelry, etc. But keep this in mind: before giving assets away, you must make sure you actually own them. For instance, if you have joint assets with other people (such as a house or a business), they will have a right of survivorship over them.

While making this list, make sure to include the contents of safe deposit boxes, family heirlooms, and other assets that you wish to transfer. Finally, don’t forget to organize and list your key documents, such as deeds and mortgages, insurance policy numbers, or investment portfolio account numbers.

Pick an executor

The person you choose to manage your estate is an executor. This person is responsible for managing how your estate will be distributed and ensuring the directions you left in your will are followed. For this purpose, you can choose a person who is close to you (such as a family member or friend) or a financial professional.

It is recommendable to appoint a primary executor and an alternate executor because your primary executor may die before you. As an alternative, you can also appoint several executors (co-executors) to handle the task together. As an important note, you should remember to ask your chosen executor(s) whether they are willing to take on the role.

Carefully choose your inheritors

We are all familiar with the chaos – and even legal battles – that heirs frequently go through when a loved one passes away. To avoid these delicate situations, you should discuss your estate plan with your heirs while still alive. However hard or uncomfortable the discussion may be, it is essential to ensure that everyone is aware of your last wishes.

Although it’s typical to leave the inheritance to the family, you can also give a specific property (such as a collection or piece of jewelry) or sum of money to a particular named beneficiary or charity.

Finally, if you have minor children, you should also name the custodian(s) in your will. This figure will be responsible for your children's physical custody if you and your spouse pass away. Often, the custodian is the same person as the guardian (the person that manages the assets of the minor).

Seek professional help

A will does not have to be notarized to be legally valid. It is valid if signed correctly in the presence of witnesses. However, we strongly recommend you get professional legal help when you decide to make a will. This will help you make sure all your documents are prepared and witnessed properly. Especially if you have complicated personal scenarios (like dual citizenship or children with different partners), the right guidance through the process is even more critical.

Consulting a lawyer could cost from $200 to $2,000, depending on the complexity of your will. Although it is significantly more expensive than the online process, it is the best way to ensure that your will meets all the formal requirements.

Keep your will updated

As a rule, you should review your will every three to five years to ensure that it reflects any significant changes in your circumstances. When reviewing the will, you should consider several meaningful life events such as a divorce, a marriage, children's birth, the death of a beneficiary, or even a new business. Besides, you should also review your will if you or your executor move out of the province or country. Given that each province and territory in Canada has different laws governing estate succession, you should even consider re-drafting your will in the new jurisdiction.

Think about your final needs

Once again, here is something no one likes to think about: final needs. However, this is an essential aspect to consider, especially if you want to spare or loved ones from stress and emotional burden.

While the bulk of your assets are distributed on your will, there will be many financial obligations left out in the world. To spare your loved ones from the task, you might want to prepare (and prepay) for your funeral and memorial service. Taking care of these final arrangements can save your family and friends from making tough decisions in a time of grief.

This could also be an excellent occasion to make equally important decisions, such as making a Financial Power of Attorney (a legal document that allows the person you name to make decisions for you even if you become mentally incapable) and deciding whether you want any type of medical orders (like a Do Not Resuscitate order).

How Speciality Life can help you with your final expenses

At Speciality Life Insurance, we are experts in making insurance easy, affordable, and customized to everyone’s needs. With that in mind, we created a Excelsior plan designed to help you take care of your loved ones, even if you are no longer around.

This policy aims to protect your family from having to deal with financial distress upon your death. It is a type of whole life insurance that your beneficiary (or beneficiaries) can use to pay for your funeral, settle debts, or in however way they find useful. It’s up to them to decide how to use the benefit.

To apply for our plans, you don’t need to go through medical exams, face-to-face meetings, or endless paperwork. You only need to be a Canadian citizen aged 18 - 74, eager to protect your family’s financial future. Even if you have been denied life insurance in the past, that will not affect your eligibility with us.

Making a will communicates your wishes and instructions clearly to your family and loved ones, making it an irreplaceable document that you shouldn’t leave to chance.

Furthermore, if you are worried about leaving a financial burden to your loved ones, or if you simply want to leave them a more meaningful legacy, our Excelsior plan might be just what you need to complement your final obligations and wishes.

Don’t hesitate to contact our team of experts if you have any questions surrounding our plan or application process.

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