Learn about Wills and Estate Planning | Epilogue

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What is a Will?

A Will is the legal document that allows you to provide your instructions for what you want to happen when you’re no longer here. It is formally called a “Last Will and Testament”.

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What goes in my Will?

These are the main things that are included in your Will:

  • Who would be the guardian of any of your minor children or pets
  • How your stuff (think bank accounts, investments, property, and personal items) should be distributed
  • Who should be in charge of winding-up your affairs, distributing your assets, and managing your children’s inheritances until they are older - this person is called your “executor” or your “trustee”
Are there any assets that my Will doesn’t deal with?

Yes, there are certain categories of assets that don’t get dealt with in your Will. For example, if you have a Registered Retirement Savings Plan (RRSP) or life insurance for which you’ve named a “designated beneficiary”, these assets will not be dealt with under your Will. If you’re not sure how this applies to you, contact your bank or insurance broker.

In certain cases, when two people jointly own real estate or bank accounts, these assets can automatically transfer to the survivor and are therefore not dealt with as part of the deceased’s Will.

But even if you have some of these assets, having a Will is necessary to ensure that all of your other assets are dealt with in the way you want.

What happens if I die without a Will?

If you don’t have a Will when you die, it’s called dying “intestate”. It means that you won’t get a say in important decisions like how your assets will be distributed or who gets to be in charge of the process.

Instead, your assets would be distributed according to the default rules of the province where you live, and the courts will determine who manages your affairs. If you don’t have a Will, it won’t matter what you would have wanted to happen.

Do I need a lawyer to make my Will?

There is no legal requirement to have a lawyer prepare your Will. However, legal advice can be helpful, particularly in more complicated situations such as: 

  • If you wish to exclude a spouse or child from your Will
  • If you are in a second marriage
  • If you have a child with a disability who is receiving government benefits
  • If you have significant assets outside of Canada
Can’t I just tell people what I want?

Telling your family and friends what you’d like to happen isn’t enough. If that’s all you do, the default rules of your province will still apply.

For your wishes to be legally binding, a Will has to be in writing and needs to be signed in accordance with the formal procedures of the province where you live.

How old do I need to be to make a Will?

There are some exceptions, but in most Canadian provinces, you need to be at least 18 to create a legally-binding Will.

When is the best time to make a Will?

People usually think about making a Will for the first time after a significant life event (e.g. marriage, birth of a child). However, it is worth making a Will as soon as you have any assets of your own (e.g. bank account). If you don’t have a Will and something happens, it can be more difficult for your loved ones to gain access to your assets and wind-up your affairs.

You are allowed to update your Will as often as you like, and so it is something worth doing early and reviewing often.

What information do I need to gather before I start?

Surprisingly, not much. You don’t need to make a list of the things you own, calculate how much money you have, or gather information about your bank accounts.

You’ll need to know details about your family members and be prepared to make some decisions about who you want to name as guardians for any minor children or pets, how you want to distribute your assets, and who will be in charge of managing your affairs.

Who will receive my assets if I make a Will?

If you choose to make a Will, you get to decide who receives your assets. These people and charities are called your “beneficiaries”.

What happens if I die without a Will?

If you don’t have a Will when you die, your assets would be distributed according to the default rules of the province where you live.

My kids are still very young. Will they receive their inheritance right away?

Throughout Canada, the default rule is that minor children receive their inheritances once they reach the age of majority. Until then, their assets are usually held “in trust” for them by the executor, and that money is used to pay for things like their school, clothing, and travel.

A lot of people think that the age of majority (18 in Ontario) is too young for their children to receive control over their own inheritance. For this reason people often specify another age in their Will (e.g. 21 or 25).

If the executor thinks a child is capable of handling part or all of their inheritance before the age specified in the Will, they usually have the option of distributing some or all of the money earlier.

Will my step-children get anything under my Will?

People often include an instruction in their Will to divide assets between their “children”. However, this doesn't necessarily include step-children. in Ontario, for example, a step-child does not meet the definition of “child” for Estate Law purposes (unless they have been legally adopted).

Therefore, if you want your step-children to inherit anything under your Will, you would have to include a specific instruction to do this.

Who is in charge of my affairs after I die?

The person (or people) you name as the "executor" of your Will will be in charge of managing everything. The executor cannot do whatever they want though - they have a legal duty to carry out the instructions provided in your Will.

In addition to the title "executor", in some provinces there are other names that are used. For example, in Alberta and British Columbia the "executor" might also be referred to as the "personal representative".

What does the executor do exactly?

Your executor has a number of main responsibilities.

One of their first responsibilities will be to carry out any wishes you have regarding funeral, burial, cremation, etc. The executor will also need to contact any companies you have accounts with (e.g. utilities, credit cards) to transfer or close those accounts. They will also need to determine all of the assets you owned at the time of death (e.g. bank accounts, real estate, life insurance), as well as your debts.

Your executor will need to make arrangements to pay your debts and file/pay your taxes. Your remaining assets will be distributed in accordance with the instructions in your Will. This may include having the executor hold assets “in trust” for young children.

Who should I select as my executor?

It is important to pick someone who you trust and think will be willing and able to accept this responsibility. Your executor does not need to have any specific legal or accounting expertise because they usually have the ability to hire professionals if the need arises.

Many people select their spouse or an adult child to be their executor. If one person stands to inherit everything from the estate, it is common to name that person as the executor.

Will my executor have to manage on their own?

Your executor will be the one in charge but will usually have the authority to hire professionals to help them deal with legal, accounting, and investment matters that may be beyond their expertise.

Can my executor also be a beneficiary under my Will?

Yes, your executor can be a beneficiary under your Will. In fact, it is quite common for your executor to be a beneficiary (e.g., spouse, partner, sibling, adult child, etc.)

Should I tell my executor that I named them?

Ultimately, the decision is up to you. But it’s usually a good idea to tell them, so that you can be sure that they’re up for the job.

You may also want to discuss some personal wishes with your executor, such as your funeral/burial wishes or your views on how and when inheritances should be distributed to any minor children.

Who will look after my kids if I’m no longer around?

As the parent of your children, you are their legal guardian - the person with the legal authority and responsibility to care for them. Children often have more than one legal guardian. For example, if a child has two parents, both are usually the legal guardians.

If one legal guardian dies, but the other is still alive, then the surviving guardian remains the sole guardian of the children. If no legal guardians are alive, the last surviving guardian has the power to assign the guardianship of their children to another person (or persons) in their Will.

How do I choose a guardian?

There is no one right answer to this question - everyone's situation is unique. The most important thing is to discuss this decision with your children’s other guardian (e.g. your spouse/partner) so that their Will reflects the same wishes.

Some of the things people often consider when deciding who to choose as their children’s guardian include: 

  • whether the person you're considering will be physically and emotionally able to care for your children
  • whether your children have to move far from their friends and family to live with this person 
  • whether this person will be able to cooperate with the people you’ve named as the executors of your estate to ensure that your kids’ needs are taken care of
Can I name more than one guardian?

It is possible to name more than one person (i.e. a couple) to both be the guardians of your children. People often do this if they’re naming their parents or in-laws as guardians.

Sometimes people want to name a sibling and that person’s spouse/partner to be co-guardians. But circumstances can change, and most people do not want to give guardianship to a brother-in-law or sister-in-law, just in case their sibling gets divorced or predeceases them. To avoid this, people often just name a sibling (and not that person’s spouse/partner).

Does the person I choose become the permanent guardian of my minor children?

The answer to this question depends where you live.

In Ontario, the appointment of the person you name as the guardian in your Will is valid for a period of 90 days. During that period of time someone needs to apply to the court for permanent guardianship.

The court will appoint a permanent guardian on the basis of the children’s best interest. However, the wishes you express in your Will are a significant factor that helps the court understand what you believe would be best for your kids.

In other provinces, such as Alberta, a guardianship appointment made in a Will could have permanent effect.

Should I tell my guardian(s) that I named them?

Becoming the guardian of someone else’s children is a big responsibility. It’s usually a good idea to discuss this with the people you’d like to appoint, so that they understand what you’re asking them to do in case the need arises, and so you can be sure that they’re up to it.

You may also have some specific wishes regarding your children (e.g. schooling, religion) that you may want to communicate to them. Some people like to write these wishes down and leave a copy of them with their Will.

How do I make my Will official?

In order to become your official, valid Will, it needs to be signed in accordance with the laws of the province where you live.

In Ontario, this means signing at the end of the Will with two witnesses physically present with you. Each of the witnesses must also sign at the end of the Will in the presence of you and each other.

Can anyone be a witness?

There are certain restrictions when it comes to who can witness a Will.

In Ontario, any two adults can technically witness you sign your Will to make it valid, but there are a number of people who should not witness because it might mean forfeiting their rights under the Will.

The following people should not be witnesses:

  • Anyone who is a beneficiary under your Will
  • The spouse/partner of any beneficiary under your Will
  • Any other person who could potentially receive a benefit under your Will (e.g. a child of a beneficiary)

It is good practice to not have anyone named in your Will (e.g. executor, guardian) act as one of your witnesses.

Do I need a lawyer or notary to approve or validate my Will?

No. If you comply with the laws of the province where you live, your Will is valid. You do not need a lawyer or notary to act as a witness or to confirm that the Will is valid.

Can I sign my Will electronically?

A Will cannot be signed electronically. All provinces require an original, physical signature on a printed copy of the Will. Your witnesses must also physically sign your Will in your presence.

Are there any other steps I need to take?

In short, maybe. Each province has slightly different requirements when it comes to signing Wills.

In Ontario, it is important to have an Affidavit of Execution signed following the execution of the Will. Failing to do this does not invalidate your Will, but it can make things much more costly and time-consuming when it comes to administering the Will. The purpose of the Affidavit of Execution is to confirm that all of the proper procedures for signing the Will were followed. 

The Affidavit of Execution is signed by one of the witnesses in the physical presence of a commissioner of oaths (e.g. a notary or a lawyer).

There is no requirement for the Affidavit of Execution to be signed right after the Will is executed. But it is usually a good idea to take this step as soon as possible, so it is not forgotten.

In Alberta, there is a similar process with the NC8 form - the Affidavit of Witness to a Will. This is a document signed by one of your witnesses in the presence of a Commissioner for Oaths or Notary Public (i.e. a lawyer). While an NC8 is not legally required in order for your Will to be valid, it is usually a good idea to get it signed.

Can I sign multiple original copies of my Will?

You should not sign multiple copies of your Will. Everyone should have only one “original” Will.

Can I make digital copies or photocopies of my Will?

Yes. You can make digital copies or photocopies of your Will, however the only “official” copy of your Will is the one originally-signed, physical document.

You may want to send digital copies or photocopies to family members, but the true original Will should be stored in a safe place where your executor can access it if necessary.

Where should I store my Will?

You should store your Will somewhere safe and in a place that will be accessible by your executor should something happen to you. Your executor needs to know where to find your Will. Lots of people decide to store their Will in their home.

Many people think that a safety deposit box is a good place for important documents, such as a Will. However, your executor may not be able to access the safety deposit box if something happens to you.

Can I store a copy of my Will in electronic form?

Storing a Will digitally is often very convenient because it will easily allow you to share copies with your executor and other family members. Just remember that it is the originally-signed, physical copy of your Will must be submitted to the court by your executor. So just make sure that the location of the original document is known and accessible.

How often should I update my Will?

It is a good idea to review your Will every 3-5 years, just to make sure that it still reflects your wishes. This is also a good time to ask yourself whether the people you've named as executors and guardians are still the right people for those roles.

In addition, any time you go through a major life event, it is important to double-check to make sure that your Will still says what you want it to.

Are there any times when updating my Will is absolutely necessary?

Yes. There are a number of "life events" that would absolutely necessitate you updating your Will.

In most provinces, getting married automatically revokes any Will you may already have. So even if you had made a Will years earlier and updated it regularly, it will become null and void once you get married. It is critical that you make a new Will after you get married. In Ontario, this rule only applies to legal marriage - being in a common-law relationship does not affect your Will.

You should also update your Will after you have your first child. This is so that you can name a guardian for your children and ensure that they have an entitlement to your assets. Many parents draft their Wills in a way that divides assets equally between all of their children (regardless of how many they have). If this is how your Will is drafted, you do not necessarily need to update it each time you have another child.

Finally, becoming separated from your spouse or partner has no affect on your Will. Since most couples leave all or a significant portion of their assets to each other, separation is an important time to update your Will. Otherwise, your estranged spouse could end up receiving your assets, even though this is not want you want anymore.

What is Planning for Incapacity?

Incapacity planning involves creating legal documents that let you choose someone to make decisions on your behalf if you become unable to.

A Will only deals with what happens once you are no longer alive. Incapacity documents, on the other hand, operate if you are alive but not mentally capable of making decisions for yourself. This could be as a result of an accident or a gradual, age-related decrease in your cognitive abilities.

In most provinces, there are two types of incapacity planning documents that are typically prepared alongside a Will as part of a comprehensive estate plan - one to cover financial decisions and one to cover health care decisions. Incapacity planning documents only apply while you are alive, but unable to make decisions for yourself.

In Ontario, the incapacity planning documents are called a "Power of Attorney for Property" and a "Power of Attorney for Personal Care ".

In Alberta, these documents are called an "Enduring Power of Attorney" and a "Personal Directive".

What aspects of my finances are dealt with under my Power of Attorney?

The authority granted under a Power of Attorney for Property (in Ontario) or an Enduring Power of Attorney (in Alberta) is a very broad. It allows the person you appoint to step directly into your shoes if you become incapable, and to do virtually anything that you were able to do when you were capable. The only thing they cannot do is change your Will.

The person you appoint will get access to your bank accounts and investments. They will manage these funds and use them to pay your expenses (rent, utility bills, etc.) for you. This person will also be responsible for filing your annual income taxes. If you need to move (e.g. to an assisted-care facility), the person appointed to make financial decisions for you would have the authority to sell your house on your behalf.

This person would have a legal obligation to manage your assets in your best interests. Their responsibility is to apply your funds for your benefit and not for themselves or anyone else (other than your dependants).

What types of health care decisions will someone make for me?

Your Power of Attorney for Personal Care (in Ontario) and your Personal Directive (in Alberta) authorizes someone to made decisions regarding your personal and health care on your behalf, in case you ever become incapable of making these decisions on your own.

These types of decisions could touch on matters regarding your health care, nutrition, shelter, clothing, hygiene, or safety. Decisions could include whether you should remain in your home or be moved to an assisted-care facility, when you need to visit a doctor, and even decisions regarding your end-of-life care.

If you have any wishes regarding your personal and/or health care, you can write these down talk to the person you've appointed while you are capable.