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Do I Need A Lawyer To Make My Will?

Fun fact: Making a Will without a lawyer can work for most Canadians!

Written By Alisha Li
Julyl 15, 2020

So, you’ve decided it’s time you made a Will. Congratulations 🎉! You are one big step closer to protecting your family and loved ones.

But, now comes the hard part: writing a Will. Many assume this involves trips to an estate planning lawyer’s office and shelling out the big bucks for legal advice. While it's true using a lawyer to make a Will is an expensive and time-intensive process, it also begs the questions: “Do I really need a lawyer to write my Will or is there a better way?” 

Fortunately, there is! Many Canadians who don’t have complex situations can now make a Will online, without a lawyer and in the comfort of their own homes.

Can I make my own Will without a lawyer? 

Absolutely! 

If you only need a basic Will, you don’t need the help of a lawyer. Online Will-writing services, like Epilogue, are the best choice for simple, straightforward Wills. 

That being said, some situations warrant a lawyer’s help. You may want to ask an estate planning lawyer for legal advice if you are in one of these situations: 

- You want to exclude a spouse or child from your Will

- You are in a second marriage

- You have a child with a disability who is receiving government benefits

- You have lots of assets outside of Canada

- You have complicated tax questions that need a lawyer’s advice

However, if you have more straightforward needs, a simple Will is likely all you need to ensure your cherished ones are taken care of. 

Do I need a lawyer to notarize or validate my Will?

You don’t need the help of a lawyer (or notary) to notarize or validate your Will. As long as you follow Canadian laws around what makes Wills legally binding, you are good to go (more on that later.) 

woman on laptop

How do I write a Will on my own? 

Your Will is unique to every individual. It is a legal document expressing how you want to distribute your assets and who should care for your dependents. But the creation of any Will should follow a similar procedure.

1. Make sure you can legally write a Will

There aren't a lot of requirements for you to be able to write a legally binding Will. When you create and sign your Will, you need to be: 

- The legal age to write a Will in your province

- Mentally able to write a Will, known as being "of sound mind." It means you understand what the Will is and what it will do. It also means you know–in a general sense–what kinds of assets you own and who you're leaving your assets to. 

2. Decide how you want to split your assets

A big chunk of your Will sets out how you want to distribute your assets when you die. 

A common misconception of estate planning is that you have to list everything you own and assign every single thing to a specific person. 

That’s not how Wills work—and what a nightmare it would be if it was! Imagine having to revise your Will every time you sold a piece of furniture or bought a car.

Instead, you should list only the things you want to give to specific people—called specific gifts. These can be items of monetary value, like an expensive watch or a sports car. They can also be things of sentimental value, like family photos or treasured letters. 

The rest of your estate goes into a pool of funds, including everything you didn’t list as specific gifts, like possessions, bank accounts, and real estate property. You then can say who gets which portion of this pool of funds. 

3. Decide who you want to care for your children

One of the most important things parents can do to protect their children is plan who will take over as their guardian(s). Guardians are people who step in to care for your children in the devastating (but unlikely) event both you and your spouse die while they are still minors. 

When you think about who would be best suited to be your children’s guardian(s), there are a few questions to ask yourself. 

Will the person or family be able to devote the time, energy, and money my children need? 

As any parent knows all too well, children are a lot of work. They need love, care, attention, and lots of financial resources. Guardians must be able and willing to provide for all aspects of their needs if you and your spouse aren’t around. 

Does the person live far away from where my children are now? 

The impact of moving far away to be with their guardian can vary depending on how old your children are. 

If your kids are older and have established lives and friends where they are, uprooting them can be very disruptive to their development. But if your kids are very young and haven’t become too attached to a particular place, they might not mind moving. 

What are the guardian’s religious or spiritual convictions? What are their moral values and views on education?

You should also consider whether your children’s potential guardian shares your values and beliefs on how to raise kids. 

Will they make the same decisions you would have made about your children’s religion? What about the type of schooling they receive? Should get lots of guidance or get free rein to make their own choices? 

These are important details to think about when choosing a guardian.

Does your potential guardian know what you’re asking them to do? Do they agree to take on the responsibility? 

Always talk to your guardian to let them know you want them to care for your children if you and your spouse both die. Also, make sure they are willing and able to take on that role if necessary. 

4. Decide whether you want to donate to charity

An often overlooked aspect of writing a Will is the opportunity to donate a part of your estate to charity. 

If you’ve spent a good part of your life supporting a cause that's close to your heart, you can continue to support it after you pass away as well. Or perhaps you never had the means to make a meaningful donation when you were alive. A Will is a wonderful opportunity to make a contribution as part of your legacy. 

When you die, most of your assets get liquidated (meaning, they get turned into cash.) When writing your Will, you can leave a portion of this money to the charities that mean the most to you. 

5. Decide who you want to carry out your wishes

So, you’ve decided how to divide your estate and who will take care of your children. The next step is to figure out who’s responsible for making sure everything happens just as you want it to. 

This person is your executor and everyone writing a Will has to name one. 

Executors gather all your assets and distribute them to the beneficiaries and charities you chose. They will also use a part of your estate to pay off your debts (including any taxes you owe—yes, you have to pay taxes even in death!)

There’s a lot of work and financial know-how involved with executing someone’s Will. An executor has to deal with the courts, close your credit card accounts, and divide up all your assets. The best person to choose won’t just be someone you trust but also someone who has the time and financial aptitude to carry out your wishes. 

If you think carrying executorship a two-person job, you can add a second executor. You can even decide to name a second person as a backup executor in case your original executor can’t (or won’t) do the job. The point is, when you have a Will, you have more control over what happens with your estate when you're no longer around to manage things. 

6. Date, sign, and witness the Will

Now comes the easy part! When you’ve put all your final wishes into your Will, it’s ready to be printed and signed.

Making sure your Will is legal is pretty simple and doesn’t require the help of a lawyer or notary. All you have to do is:

1. Print your Will (you need a physical, paper copy.)

2. Date and sign the Will in the presence of two witnesses (your witnesses shouldn’t be beneficiaries or spouses of beneficiaries.) 

3. Have your witnesses sign the Will as well.

There are a few other things we recommend doing after you finish making your Will to make sure it’s legal, safe, and always up-to-date, including finding a safe place to store it and talking to your friends and family about your wishes. 

And there you have it! A completely valid, legally-binding Will.

signing document

What should I never put into my Will? 

A Will should be a comprehensive document covering all the assets you want to give away. But there are a handful of things you should never include in a Will: 

- Jointly owned accounts, businesses, and properties

- Life insurance policies

- Retirement plan policies

- Gifts and money for pets

- Funeral and burial wishes

Jointly owned accounts, properties, and businesses

If you jointly own a bank account, your relationship with your co-owners has a feature called the right of survivorship. When one co-owner dies, the other surviving co-owner automatically gets 100% of the ownership. The same is true for any business or real estate property you own as a joint tenant.

This means when you die, you no longer own any part of that account of property—and you have no part of it to gift to others. 

Life insurance & retirement plan policies

Life insurance policies and retirement plan policies like the Canadian Pension Plan already name your beneficiaries. When you die, that insurance payout automatically goes to your designated beneficiaries and overrides anything you might include in a Will. 

Including a life insurance or retirement plan policy in your Will is an empty gesture, as the payout goes directly to that beneficiary, and not into your estate. 

Gifts and money for pets

For estate law purposes, pets are “things” or property. So you can’t leave them any items or money in your Will since they can’t legally own anything. 

What you can do is leave a pet (a.k.a. the property) to someone and give that person toys, items, food, and money to ensure your pet lives a happy and comfortable life if they outlive you. 

Arrangements for a dependent with special needs

Arrangements to take care of a dependent with special needs should not appear in a Will. 

Instead, consider setting up a special kind of trust. A trust is a legal tool that lets you appoint someone (the “trustee”) to hold money for the benefit of another person (the “beneficiary”). 

A trust for someone with special needs is called a Henson trust. A Henson trust lets you give a disabled person income without impeding their eligibility for social benefit programs.

The law around these trusts can get complicated—it’s a good idea to see a lawyer about setting one up.

Funeral and burial wishes

Whatever you do, do not leave the only copy of your funeral and burial wishes in your Will. 

It can sometimes take people days, or even weeks, to locate an original Will after someone dies. Meanwhile, most funerals in Canada happen within a few days of a person’s death.

It's possible those planning your funeral won't find your Will in time to know how you wanted to say goodbye. So, if you want your favourite flowers or a special song played at your funeral or if you want to be buried with a meaningful memento, it's best to document that separately and tell your executor what you want.

bouquet of flowers

Gone are the days where you had to hire an estate planning lawyer to write your Will. Making a Will now is easier than ever, with online services like Epilogue. You can make a Will online in a matter of minutes without having to visit a lawyer’s office.

No matter how you choose to do it, make sure you have a legal Will and Power of Attorney in place to keep you and your loved ones safe.