How to write a will in Canada
A last will and testament is a critical part of estate planning, as it allows you to legally document your last wishes and protect your assets and loved ones after your passing. No matter your age or financial situation, creating a comprehensive will can bring peace of mind and help ensure a smooth transition for those left behind.
Drafting a will is not a one-time event, as it should be reviewed and updated whenever significant life changes occur, such as the birth of a child, a divorce, or major changes in your financial situation. In this article, I show you how to make a will in 6 steps. Not every step will apply to everyone, but it offers a good guideline.
Writing a Will in 6 Steps
Regardless of the method you use, i.e., lawyer, online will, or legal will kit, you can create a legal will by following these steps:
1. Make An Inventory of Your Property
Before drafting your will, you’ll need to create an inventory of your property. Include all of your assets, including any real estate you own, investments, personal belongings, and even sentimental items. This will help you organize and divide your possessions according to your wishes.
2. Have A Discussion With Your Spouse
If you’re married or have a common-law partner, it’s critical that you discuss your will with your spouse beforehand to ensure that you’re in agreement when it comes to your intentions. If there are any potential issues, it’s important to address them beforehand. This could include allocating shared assets or provisions for children from previous relationships.
3. Name An Executor
An executor is a person who administers an estate on behalf of the deceased in accordance with the will. The executor is responsible for gathering the estate’s assets, paying off any debts, and distributing the remainder of the estate to any listed beneficiaries.
The executor must also file a final income tax return for the deceased and pay any estate taxes owed. For a complex estate, they may have to follow the probate process to settle the estate.
Being an executor is a significant responsibility, so you’ll want to choose a reliable and trustworthy person. Many people choose their spouse as their executor or a responsible adult child. If it’s convenient, you can assign multiple executors to work together.
4. Choose A Custodian For Minor Children
If you have minor children, you’ll need to select a custodian who will care for them in the event of your passing. Ensure this person is aware of the responsibility and is willing to undertake it. It’s also a good idea to name an alternate custodian if the primary one cannot fulfill the role.
5. Make A List Of Beneficiaries
List all of the individuals and organizations that you wish to leave something to. They will be known as your beneficiaries. Be specific with their names and contact information to avoid confusion or disputes in the future. Allocate the portions of your estate you want to leave for each beneficiary, like a percentage or specific assets.
6. Decide How You Will Prepare Your Will
Once you’ve gathered all of the necessary information and made decisions on an executor, beneficiaries, etc., it’s time to proceed with making your will. You have several options available. For example, you can hire a lawyer, complete an online will, purchase a DIY will kit, or write your own holographic will. Let’s take a closer look at each option.
Ways to Make a Will in Canada
How you decide to create your will will depend on the complexity of your estate and your budget. Each option has its pros and cons, although I can only recommend the first two.
Through A Lawyer
Consulting a lawyer is the most comprehensive way to write a legally valid will in Canada. A lawyer can provide expert advice on all estate planning documents, ensuring your will accurately reflects your wishes.
They can also guide you through the process of appointing an executor and beneficiaries, as well as handling taxes and debts. While this option may be more expensive – you could pay up to $1000 or more – it provides peace of mind and professional support. I recommend hiring a lawyer for complex estates.
Purchase An Online Will
Online wills, offered by companies Wilfull and Epilogue, have become incredibly popular in recent years. These platforms guide you through the entire process: gathering your information and generating a legal document. They also offer additional support, including free will updates, living will creation and secure storage of your documents.
While online wills are designed to suit most Canadians, they aren’t meant for complex estates. For example, if you own a corporation, own foreign property, or have a blended family with kids from different relationships, you’re better off preparing your will through a lawyer. Otherwise, consider using an online will.
DIY Will Kit
Another option, which I don’t recommend, is using a do-it-yourself-will kit that you can buy online or from a store like Staples. Using a kit to make your own will is cheap and perhaps better than having no will at all, but they only work for the most basic estates, can be confusing, and are often challenged in court. It is also difficult to keep them up to date.
Write A Holographic Will
Lastly, a holographic will is in your own handwriting, created entirely by you without any witnesses. In some provinces, like Quebec, you must be at least 18 years old to write a holographic will. This is an option if you have a simple estate and want to avoid the costs of hiring a lawyer or paying for an online will.
However, you have to make sure your holographic will is legible and contains clear instructions for the distribution of your assets, the appointment of an executor, and any other relevant details. Like the DIY will kit option, I don’t recommend a holographic will.
Mistakes to Avoid When Making a Will
If you aren’t careful, you can create problems for your executor and beneficiaries after you pass away. Here are some common mistakes to watch out for when creating your will:
Not having A Will
The biggest mistake you can make is not having a will at all. Make sure to write a will as soon as you have assets or dependents to ensure your wishes are respected and your family is protected.
Not Updating Your Will
Your written will should be updated regularly to reflect major life events such as getting married, having children, or going through a divorce. Failure to update your will can lead to confusion and disputes among your loved ones.
Choosing The Wrong Executor
Selecting an unbiased, responsible, and competent executor can make a big difference in how smoothly your estate is managed. Be cautious about appointing family members or friends who may not be able to handle the responsibilities or be impartial in their decisions.
Not Providing Enough Detail
When making a will, be as specific as possible to avoid misunderstandings. Clearly identify your funeral wishes, burial wishes, beneficiaries, the assets you’re leaving them, and any conditions or stipulations you want to include.
Relying Solely On A DIY Will Kit
While DIY will kits can be a cost-effective option, using a template can lead to mistakes and omissions. Always consult a legal professional when creating or amending your will to ensure it’s accurate and legally binding.
Not Including Digital Assets
In addition to your physical assets, remember to include instructions for any digital assets, such as social media, email, and online financial accounts.
You can choose to write a will online or seek professional help to create one that complies with Canadian laws and regulations. Either way, remember that a well-written will offer peace of mind, knowing that your loved ones will be taken care of and your assets will be distributed in accordance with your wishes. If you don’t currently have a will, now is the time to ensure your legacy is preserved in the way you intended.
Do I need a lawyer to create a will?
No, you don’t necessarily need a lawyer to create a will. However, it is recommended to consult with one, especially if your estate or wishes are complex. A lawyer can provide guidance and ensure your will complies with Canadian laws, reducing the risk of future disputes.
Can I create a handwritten will?
Yes, you can create a handwritten will, also known as a holographic will. In Canada, holographic wills are legally valid in some provinces as long as they are entirely written in your handwriting and signed by you. This type of will, however, may be more susceptible to disputes and challenges in court than a formal, typed will. Consult with a lawyer or research your province’s regulations to ensure the validity of a handwritten will.
How do I choose an executor for my will?
When choosing an executor for your will, consider someone you trust and who is responsible, organized, and capable of handling the tasks involved in settling your estate. This person should be able to communicate effectively with your beneficiaries and seek legal or financial advice when necessary. Executors are often close family members or friends, but you can appoint a professional, such as a lawyer or trust company, especially if your estate is complicated or large.