Ten myths about a Canadian Last Will and Testament

Having watched families fight over the estate and end up not speaking to each other for the rest of their lives, I can tell you first hand that leaving this world without making a plan for what’s in your estate is one of the worst thing you could do for your loved ones.

Over the Thanksgiving weekend, the CBC led their business section with an article on writing a Canadian Last Will and Testament and suggested that you should discuss with your children exactly how you were planning to divide your estate.

Canadian Last Will and Testament

There were some great comments on the article from people who were living the nightmare of administering an estate, some estates had a Will involved and some didn’t. Problems arose with children fighting over particular bequests, Executors were not following the legal procedures, aged parents were being forced to change their Wills in the advanced years. What struck me though was the level of misunderstanding of estate planning law from the general public. In a total of 200 comments, I have picked out 10 terrible misconceptions that people have taken the time to submit in response to the article. The lesson here is do not take legal advice from a comment forum.

1. “Modern Wills cover physical/health issues as well as financial ones”

This is absolutely not true. A Canadian Last Will and Testament comes into effect only at the moment you die. It serves absolutely no purpose while you are alive, so while it could potentially include instructions for your burial and funeral, it absolutely cannot include healthcare instructions. We actually do not recommend that you include funeral wishes in your Last Will and Testament, and they are technically not legally binding. We offer an entirely separate service for documenting your funeral wishes, and the document can be stored with your Will. For any healthcare instructions, you need a Healthcare Power of Attorney or “Living Will“. The first of these allows you to name a person to make healthcare decisions on your behalf while you are alive but unable to express your own desires for healthcare. The Living Will allows you to pro-actively make some of these healthcare decisions.

2. “Without a will the government would seize all the possessions”

Although we encourage everybody to write their Will, it is wrong to suggest that the government will take all of your possessions if you do not have one. Assets are frozen, that much is true, but the estate is then distributed according the intestate laws of the Province. Only in very unusual circumstances when there are no immediate or extended family members surviving, would the estate go to the government. The process is certainly much easier with a Will, but it is unlikely that the government will take all of your possessions if you do not have a Last Will and Testament in place.

3. “A useful iPhone/ipad/Android app to designate beneficiaries of family heirlooms is xxxx”

Currently in Canada, the only way to designate a beneficiary for anything is by using a printed, signed and witnessed Last Will and Testament. Any online service, or mobile app that claims to allow you to name a beneficiary for an asset or possession is misleading you. Likewise, verbal promises mean absolutely nothing in law. The fuzzy promises made in person, or through an online service or mobile app are a frequent cause of friction between family members. You must describe the distribution of your estate in a legal Canadian Last Will and Testament; printed, signed and witnessed.

4. “I have never bothered with a will because I really don’t give a damn.”

Writing a Canadian Last Will and Testament is not about you, it is a simple courtesy for your loved ones that you leave behind. They may be upset by your passing, and significant assets may be involved. Only the most belligerent would deliberately devise a way to tear apart a family, but dying without a Will is doing exactly that. The process takes less than 30 minutes and saves months or years of pain for the family that you leave behind. It also ensures that most of the estate stays with the family and is not swallowed up by legal fees as different sides of the family battle each other in a courtroom.

5. “My advice? Give it all away PRE-mortem to avoid lengthy probate time.”

This is rather impractical advice because nobody really knows when they are going to die. If everybody knew for sure that they will live until they are 85 years old, then planning would be easy, but it is actually very difficult to spend all of your money while you are alive and still have money to live on. It’s a very poor approach compared to just writing a Will.

6. “Writing your will on a napkin is not legal unless it is stamped by a Notary”

For some reason discussions on Wills always devolve into the legal requirements for a Will and how you can just write a Will on a napkin. It is actually true in most Provinces that an entirely handwritten “Will” on the back of a napkin would suffice as a Last Will and Testament, but it’s an academic discussion because it makes absolutely no sense to do this unless you were pinned under a rock somewhere with hours to live (and even then, your state of mind could be challenged). You cannot write a well drafted Canadian Last Will and Testament starting with a blank piece of paper. A proper Will needs to have alternate plans, residual beneficiaries, trusts, guardians and powers to the Executor that cannot be drafted by a layperson. The comment that a will written on a napkin must be stamped by a Notary is incorrect, but don’t take this to mean that using a napkin, or even a do-it-yourself blank form kit is an appropriate way to write your Last Will and Testament.

7. “Anything written anywhere as a wish upon dying is considered a will unless superceded by a legal document.”

Again, this is a discussion about the minimum requirements required of a document to be considered a Canadian Last Will and Testament, but this comment seems to have mangled the very special legal requirements of a Will written by a member of Canadian Forces while on active duty. Written into most Provincial laws there is a special category of Wills that need not be witnessed if written by an active military service member. It doesn’t apply to the general public, and it is absolutely incorrect that anything you write “upon dying” is considered a Will. A Will must be printed, signed and witnessed while you have the mental competence to know what you are doing. Do not wait until you are about to die, and to suggest that this can be used as an estate planning strategy is laughable.

8. “Don’t let your children know they have Power of Attorney if you have chosen that in your will.”

You cannot include a Power of Attorney in a Canadian Last Will and Testament. The Power of Attorney is a document that is active while you are alive but unable to make decisions for yourself. The Financial Power of Attorney or Healthcare Power of Attorney are immediately cancelled at the moment you die, at which point your Will becomes active. Your Will is an inactive document all the time you are alive, so appointing a Power of Attorney in your Will is not possible. As an aside, some comments suggested that if you grant somebody powers through a financial Power of Attorney the person can prepare a new Last Will and Testament for you. This is not possible.

9. “In Quebec the civil code has provisions for exactly what happens in case you didn’t do your estate planning. Maybe other provinces should follow that model.”

Actually, every Province has a law of intestate succession (how everything will be divided if you do not have a Will) it is not unique to Quebec. However, this is an extremely poor approach to estate planning because the intestate laws will almost certainly not match how you would choose to distribute your estate. Many people have the misconception that the spouse just receives everything, when in fact this only happens in Alberta, Manitoba. It is never a good idea to leave the plans for distributing your estate to the laws of intestate succession.

10. “The fee you pay a lawyer usually includes safekeeping of a valid copy, and usually there is an index or a process that your heirs can use to find out which lawyer or successor law firm has the will.”

Many lawyers do offer to store your Will, but there is absolutely no index or process that heirs can use to find out which lawyer has the Will. One of the most common questions that we receive at LegalWills.ca is “My father created his Will when he was living in BC, and I think the lawyer has a copy, but I don’t know if the law firm still exists or which law firm he used, how can I find the Will”. We are not aware of any process that makes this task any easier (the government of BC allows you to register the location of your Will, but a tiny percentage of Wills are registered this way). In our opinion, the most effective solution to this issue is to give your Executor your Will in a sealed envelope for safe keeping.

Video

How I wrote my Canadian Will in five minutes

At LegalWills.ca we claim that you can create a well-drafted Canadian Last Will and Testament in as little as 20 minutes. Clearly, there are some important decisions to be made, and it’s not something that should be written hastily, but if you have a straightforward situation and you know how you want your estate to be distributed, it really shouldn’t take you very long to prepare your Will.

To illustrate this, in the following video I create my Canadian Will, or more specifically my Ontario legal Will, in about 5 minutes.

Video transcript

The first thing I’m going to do is enter some basic personal information; my name, town where I am living, and the most important thing is the Province, and the Province is going to determine the legal jurisdiction for which the Canadian Will is going to be written. For the purposes of this demo, I’m going to be creating an Ontario Legal Will.

Enter family status and information

I’m going to set up the account for myself., and include my gender here, and now I’m going to give my marital status. For the purposes of this, I am married and I’m going to have two young children and that means I’m going to have to create a trust and guardians for those children.

I’m going to enter in some basic information about my spouse including my wife’s name, and move onto the next page where I’m going to identify my children.

For this demo, I’m going to have one young daughter, and when I say young, I mean she’s under the age of 18, which means she cannot inherit directly. I am therefore going to have to create a Minor Trust for her. I’m now going to add one young son. This is obviously a very common scenario where you would have a spouse and two young children, and this is exactly the type of demographic that absolutely should create a Will.

I’ve now defined my family, I don’t have any deceased family members, and for now, I’m not going to include any other people in my Will, I can always add those later if I want to.

Name guardians for children

The next thing I’m going to do is identify some guardians for my minor children., so I have a son and a daughter who I need to nominate a guardian for. Here I’m going to name the person, it’s going to be my sister, and I’m going to name an alternate just in case this first choice person cannot serve as the guardian. As is typical, I’m going to name the same person as the guardian for my two young children.

Choosing an Executor

Now I need an Executor. The Executor is the person with the responsibility to carry out the instructions in the Will. I’m going to name the Executor, their relationship to me, and their address. I can name up to three co-executors, for the purposes of the demo I’m naming just one. I’m now going to name an alternate just in case that first choice is unable or unwilling to serve. – you should always have a back-up Executor. Again, I can name up to three alternates.

Distribute my estate

Now I’m moving into how to distribute my possessions. The first thing I can do is a bequest to charity. We prompt people explicitly if they would like to include a charitable bequest, so I’m going to quickly include a $1,000 bequest to United Way in Ottawa. If I add that, it is going to be included in my Will.

Now I’m going to get onto the main distribution of my possessions.

As is typical, I’m going to leave everything to my wife. But if something were to happen to the two of us – we were both involved in a common accident, then I’m going to divide everything equally between my two children. So I’m going to leave them half each. Remember though, they are young children.

Creating an alternate distribution plan

I can now decide what’s going to happen if either one of those children pre-deceases me. So what I’m going to do here is name an alternate beneficiary for one child. I’m going to name this person, my cousin, to receive everything that the first child would have received had it not been for the fact that they pre-deceased me.

That’s child one of two, and now I’m going to move into the second child. And decide what is going to happen to that second child’s share if they were to pre-decease me.

You see the three options here – I can leave everything to the other child and that’s what I’m going to do in this case. And if both children were to pre-decease me, then again, it would all go to my cousin.

Creating Trusts for children

Now I need to set up Trusts. Remember, they are young children so they cannot receive their inheritance directly. I am setting up a trust so that they will receive their inheritance when they are 30. The first child will receive half of it when they are 21, the second child, again, at 30 years old will receive the bulk of their inheritance, but in this case, they will receive one third of it when they are 21, and one third of it at 25. The remaining third they will receive when they are 30.

It is now asking me if I have any particular debts that I wish to forgive., and for this demo I will say “no”.

I’m now going to quickly setup the account and pay for the Canadian Will service. The Canadian Will service is $34.95, plus applicable taxes.

I have to set up some security questions just in case I forget my User ID and password. Once you have set up the account, you have up to one year to make any changes and get the Will looking exactly the way you want it.

Rather than stepping through the credit card payment process, I have just entered a discount code there, and now I have the Will service enabled on my account, and the account is all set up.

Drafting my Canadian Will

I can go back to my member home page and now I’ll be able to view my Will.

Here’s all my account services; the Living Will, Power of Attorney, Expat Will, and a number of other different services but I’m going to go back to the Ontario Will service to download and print my Ontario Will.

And here….is my Canadian Last Will and Testament which pops up as a PDF and as you can see there are eight pages.

Here’s the $1,000 bequest to United Way, here’s the bequest to the two children, here’s the trust for one of the children, and the trust for the other child. Then there are a number of clauses that give powers to the Executor. Towards the end here is the guardians for my children.

And on the last page is where I sign it in the presence of two witnesses to create my Canadian legal Will. And there you have it, a completely legal Canadian Last Will and Testament in five minutes.

 

Six good reasons to prepare an online Will

Is it possible to get a will written without a lawyer?

We saw this question recently posted on Quora and we were a little surprised by the misinformation provided in the answers. They included the tired old analogies to “you wouldn’t remove your own appendix, so you shouldn’t prepare your own Will” (the two tasks are nothing close to comparable), and also a rather surprising answer from a lawyer who claimed “In non-emergency situations, you must get it done through a lawyer.” which is absolute nonsense.

Write your online Will

I would like to provide some reasons why it would actually be advantageous to prepare a Will without a lawyer, but first some clarification on the term “online Will”

What is an “online Will” service

There is no such thing as an online Will. A Will has to be printed, signed and witnessed in order to be made legal. Online, scanned or digitized versions of a Will are not legal documents. Any service that offers to store your Will online or in the cloud are misrepresenting what they can do because based on current law in Canada, a copy of a Will stored in the cloud cannot be probated. Our partner website in the US recently published a blog post explaining this. So when we talk about an online Will service, we are really talking about an Will service that is online. Once you have stepped through the service, the document must be printed, signed and witnessed to be made into a legal Last Will and Testament.

Advantages of an online Will service

There are at least, six good reasons why you might want to consider using a service like the one at LegalWills.ca.

You might actually write your Will

Depending on which report you read, about 65 percent of Canadians do not have an up-to-date Will in place and for some age groups (like the 18-35 year olds) that number is as high as 88%. Being that a Last Will and Testament is a critical document that every adult absolutely must have, this would appear to be a broken system. One of the most frequently cited reasons for not having a Will is that the process is inconvenient. An online Will service addresses this by allowing you to prepare your own Will from anywhere in the World, at any time that suits. You simply step through the service, answer the questions, download and print your Will and then sign it. If you started the process at midnight tonight, you could have your legal Will in your hands by 12:20am.

It is affordable

The number two reason for not having a Will is that it is expensive. I can’t count the number of times that I have heard a lawyer saying that “it’s not really that expensive and spending $800 today saves your family a lot of aggravation after you have passed away”. Having a Will certainly makes things easier for your loved ones, but $800 is both a lot of money, and really poor value for money. Many users of LegalWills.ca come to us, not because they can’t afford to spend $800, they just feel that it is too much money to pay for 15 minutes of a lawyer’s time. And all of us have to choose our priorities that level of spending.

We often hear from people who needed a temporary document as they were leaving on vacation and needed the Will in a hurry. They prepared their Will using our service for $34.95, and when they return from their trip they spent $800 on a “proper Will” only to find that it is verbatim, word-for-word the same as their “cheap Will”.

No need for a codicil

Many Canadians are sitting on a Will that is years out of date. Lawyers attempt to future-proof their Wills by including phrases like “all future issue” meaning that the Will covers any children that you may have in the future, but this is used as a work-around strategy because updating a Will can be extremely expensive and inconvenient. Anna Nicole Smith‘s Will has been in the courts for years because she didn’t update it in time to include her 5 month old daughter. Michael Crichton ended up in the same situation. But beyond the classic family milestones of having additional children or getting married, a Will needs to be updated whenever there is a change of circumstance of anybody named in the Will – If your Executor is no longer the best choice, a beneficiary has pre-deceased you, the guardians for your children are no longer available, your Will needs to be updated. Fortunately, at LegalWills.ca you can just login to your account, modify that part of the document and print a new Will, no appointment necessary.

It’s an education

We often receive feedback from users of our service thanking us for the education that they have received about the process of creating a Will. We prompt them to think about different scenarios, invite them to think about charitable giving, provide tips on selecting an appropriate Executor, discuss guardianship issues and generally provide help every step of the way. We explain the process of not only writing the Will, but also how your Executor will go through the probate process. When you read your Will, you are likely to understand it and be more confident that it actually reflects your true wishes.

We provide value added features

Because we can harness the power of the internet we are able to provide a more complete set of services beyond your essential estate planning documents. Of course we allow you to prepare your Last Will and Testament, Living Will (Healthcare Power of Attorney) and Financial Power of Attorney, but we round these services out with:

  1. Lifelocker service: One of the key challenges for your Executor is locating and gathering up your assets. Our Lifelocker service allows you to securely document your “key people to contact”, the location of your assets and login credentials with instructions for your digital assets. This is made available to your Executor at the appropriate time (and not before).
  2. Funeral wishes: We recommend that you do not include your funeral wishes in your Will itself. We provide a free service that steps you through some of the thought processes associated with arranging your funeral. The final document can be stored with your Will, but does not have the formal signing requirements of your estate planning documents.
  3. Keyholders: You can name trusted individuals and grant them access to certain documents within our service. For example you can allow your Executor to unlock your Lifelocker, or allow your family to see your funeral wishes.
  4. Messages: You can create messages to send to loved ones after you have passed away. These are unlocked by your keyholder and delivered to specific people at the appropriate time.

What’s the problem with online Will services?

In closing I would like to debunk 3 myths about online Will services

Myth 1: They are incomplete documents.

When a lawyer prepares your Will they enter your information into a software program and it generates a Will. We use that same software. In most cases, the final Will is word-for-word the same. If you have some complexities in your situation e.g. a child with special needs, then you would need intricate trust clauses to be written and our service is not appropriate for you, but for the vast majority, our service creates a complete document including about 25 clauses including trusts for minors, guardianship and powers to the trustee.

Myth 2: They do not take into account local laws

I find it quite amusing when this is offered as an objection to an online Will service. Of course we take into account Provincial differences. The first question that we ask is your location and the service then takes you down a specific path. We have actually found the greatest variation in Power of Attorney laws, but all of our services are Provincially specific. However, the concern is real for blank form kits; when I search Amazon.ca for “Will Kit” one of the first results is WillMaker Plus, a US product.

Myth 3: They are not up to date

The Wills, Estates and Succession Act for BC came into force on March 31, 2014, Alberta had significant changes in 2012. We always monitor and make changes to our service when the laws change. This is another of our our significant advantages over blank form kits.

So please don’t be put off by scare tactics telling you that you cannot prepare your own Will, and online services are not legal. You can absolutely prepare your own Will, it really isn’t very difficult and you should take care of it today.

 

 

Why we don’t support Québec Wills

I don’t get it….you say you are Canadian Legal Wills, but you don’t support Québec. Québec is a part of Canada you know…

Whenever we receive any kind of feedback, we always do everything we can to address the issue, but the support of Québec Wills is a really tricky challenge.

Quebec Wills

Background to Québec Law on Wills

To provide some background, Québec law was established around the middle of the 17th century. Louis XIV decreed that the laws of Québec would be based on the laws of Paris which were a variant of “civil law”. Although the laws changed a little in the years that followed, the Québec Act of 1774 reinstated the Civil law system for the Province of Québec even though it had since been placed under British rule. When Canada was officially created in 1867 all Provinces adopted the British “Common law” of English origin while Québec retained their “Civil Law” derived from the Napoleonic code.

Since 1994, estate planning law in Québec has been guided by the Civil Code of Quebec, and particularly the book on Successions. Many of the components used in Estate planning are similar in concept the the rest of Canada, but there are many different terms and expressions used (incidentally Louisiana have different laws than the rest of the US for the similar historical reasons).

The structure of a Will

The basic structure of a Last Will and Testament in any jurisdiction is the same. The document;

  • Identifies the person creating the Will
  • revokes all previous Wills
  • Names a person to carry out the instructions in the Will
  • Describes the distribution of the estate
  • Names guardians for minors if applicable and sets up trusts for those minors
  • Has a signature page with space for two witnesses to sign

This is why in most jurisdictions a Will handwritten on a blank piece of paper is perfectly acceptable. If these key components are included, then you have a valid Will, but it may not necessarily be a well drafted document.

Because the key concepts are the same in every jurisdiction, there was an attempt to harmonize laws across jurisdictions by creating an “International Will”. Most jurisdictions accept an international Will, but again, this type of document would lack some of the detail required of a very well written Last Will and Testament – you would likely be missing some of the detail required including trusts for minors, alternate provisions, residuary clauses, guardians for minor children and powers granted to the trustee.

Key differences in Québec Wills

The key differences are in the limitations on what can be included or excluded from a Will, and also in the wording of the clauses. So much so, that a Will written for Québec ends up looking dramatically different than a Will written for any other Province in Canada. Our services at LegalWills.ca do change from Province to Province to take into account things like age of majority, and our help text varies when describing things like the effect of marriage and divorce on the status of a Will. But Québec law is so different to the rest of Canada that our service, and particularly the help text would effectively have to be completely re-written.

Types of Québec Wills

One of the most significant differences in Québec law is the concept of a Notarial Will. If a Will is written with a notary and signed by one other witness no probating of the Will is required. The notary public system and use of Notaires is unique to Québec and their powers are different to the rest of Canada (actually, the qualifications and responsibilities of Notaries varies quite significantly from Province to Province).

Two other types of Wills are allowed in Québec which more closely match the rest of Canada. The holographic Will, written entirely in the handwriting of the testator, is accepted in most Canadian provinces including Québec. This type of Will usually doesn’t have to be witnessed and so is the fastest approach to preparing a Will. However, it is not generally recommended because it is actually very difficult to write a Will starting with a blank piece of paper with no legal training.

The third type of Will accepted in the Province of Québec is the “Will Made in the Presence of Witnesses”: sometimes called a “Will following the form derived from the laws of England”. This is the closest match the the standard Wills that are created throughout the other Canadian Provinces.

Despite its similarities, there are differences, particularly with some of the terms used. In a Québec Will,

  • Guardians are called Tutors
  • Beneficiaries are called Legatees
  • Executors are called Liquidators
  • Estate is called Succession
  • Codicil is called a modification

Creating your Legal Will in Québec

Residents of Québec still face the same challenges as the rest of Canada; it can be expensive and inconvenient to prepare a Will, yet every adult should have one. Some services are popping up to address this need, but we haven’t seen anything offered quite to the level of the service at LegalWills.ca. Most services offer a variety of blank forms, which end up being somewhat limited in their capabilities and usually lack the error checking of an interactive online service.

We have reviewed a few different services offering do-it-yourself Wills for residents of Québec and the best we have found is at QuebecWillKit.ca . It isn’t an interactive online service like the one at LegalWills.ca but it does offer an interactive downloadable form that supports most family situations.
The same principles apply as with our service; If you have any complexity to your family situation we would recommend that you seek legal advice and pay for a legal professional. However, if your family situation is somewhat straightforward and you need a Will, then we would suggest that you take a look at the product available from QuebecWillKit.ca.

Dying without a Will in Canada

If a Canadian dies without a Will, they have left a bit of a mess for their loved ones, and sadly missed out on an opportunity to distribute their assets in a meaningful way. Instead of recognizing friends or organizations that have made an impact on their life, they have left all of the planning to their Provincial government who have already decided how the assets will be divided. It may come as a surprise however, to learn that every Province is different and that there are some very inaccurate assumptions. In this post we will run through a few scenarios, and highlight some Provincial differences.

Dying without a Will

Let us start with the most common misconception;

If you are married, then your entire estate will go to your spouse.

In all Canadian Provinces, if you have no children, then this is indeed that case – your spouse will receive everything. Even in this situation, it is advisable to have a Will in place because the process without a Will can be delayed by as much as a year. As soon as you have children though, the distribution becomes very convoluted.

If you have one child then the first thing that will happen is that an estate administrator will be appointed, and hopefully the spouse and child can agree on this. Then the estate will be distributed according to Provincial law. In Ontario the spouse will receive the first $200k, and then the spouse and child will equally split everything above $200k with the child receiving all of their share at the age of 18. In BC, the spouse receives a “life interest” in the home, the first $300k and the remainder divided equally between spouse and child, with the child receiving their share at 19. In Alberta and Manitoba the children receive nothing.

If you have a spouse and more than one child, the spouse receives one third of the estate above the $200k or $300k with the remainder shared between however many children there are. Again, in Alberta and Manitoba the children receive nothing.

If you do not have a spouse or child, then the order of inheritance will be in order; parents, siblings, nieces and nephews. If there are no relatives, then the estate will be passed to the government.

Common-law spouses and inheritance

But what if you are not married, and living as a common-law couple. Well, if you do not have a Will then you should hope that you live in BC, Saskatchewan, Manitoba, NWT or Nunavut. If you have lived together for more than 2 years in a “married-like” arrangement then in these Provinces or Territories, then you will receive the same rights as a married spouse, however, in all other Provinces including Ontario, you will receive NOTHING (unless you can make a claim to the courts as a dependent, which can be costly and time-consuming). But even if you live in a province that recognizes common-law relationships, don’t be surprised if other family members put up a fight.

The problem of dying without a Will

Leaving the distribution of your estate to Provincial laws is a risky if not, irresponsible approach. Here are some key powers that a Last Will and Testament will give you.

  1. Writing a Will allows you to decide who receives which parts of your estate, including allowing you to include friends, charities or organizations.
  2. It minimizes family disputes over perceived entitlements
  3. It allows you to name an Executor or Trustee to take care of the administration of the estate
  4. It allows you to protect a common-law spouse
  5. It allows you to determine the ages at which minors receive their inheritance
  6. It allows you to name a guardian for your minor children.
  7. It allows you to create alternate plans in case you are involved in a common accident.

As you can see, there is never a good reason to not write a Will, but the task is often put-off because it is expensive or inconvenient. We are trying to address this at LegalWills.ca by helping you to write your own Will, from the comfort of your home, for only $34.95. The whole process takes about 20 minutes.

Once you download and print the document, just sign it in the presence of two adult witnesses and you will have your fully legal Will.

 

 

Why you need a Last Will and Testament

The statistics still show that over 65% of adults in Canada do not have an up-to-date Last Will and Testament – even though most people know that they need one. Here are the top ten excuses for not having a Will, and we will explain why everybody should take the time to prepare their Will write now.

Write your Will

1. Everything is going to my spouse whether I have a Will or not

In reality, there is not a single Province in Canada in which you can guarantee that this will be the case. Without a Will, the distribution of your estate is determined by “intestate law”, which follows a rather complicated flow depending on your family situation. What makes it more complicated is that no two Provinces are the same. In most Provinces, if you are married with children, your spouse will not receive the entire estate.

2. I have a Last Will and Testament, I did it 20 years ago

Wills don’t usually last 20 years. Legally a Will is valid until it is destroyed or in most Canadian provinces a Will is cancelled if you get married. However, it is unlikely that the content of your Will wouldn’t need to be changed. You may have a new child, or if you already have children, they may become adults or have children of their own. You may have named an Executor who has become too old to perform the task. You may have worked with an organization that you now wish to include in your Will. There are a number of reasons beyond the accumulation of assets that may prompt you to update your Will. The advantage of using LegalWills.ca of course is that you can update your Will any time you wish as often as you need to.

3. I’m not worth anything. I’ll write a Last Will and Testament when I’ve accumulated some assets.

You are not writing a Will to come into effect today, and the reality is that you have no idea what your estate will be worth after you have died. A well written Will would take into account the growth of your estate over time, so even if your Will came into effect in 25 years time, it would still likely work for you. More importantly, if you died as a result of an accident and somebody was found negligent; your estate could be worth significantly more than at any time in your life.

4. I’ve told everybody what I want to happen. I don’t need to write it in a Will

This is one of the most common causes of a family fight over assets. People feel that they are entitled, or have been promised certain possessions or assets, when in fact a verbal promise is meaningless in law. If a family member thinks that they have been promised some money, only to discover that legally they have no claim, it will almost certainly cause a family rift

5. It’s nothing to do with me. I’ll be dead anyway, I’ll let somebody else sort it out

You are probably not aware of the size of the mess that you will be leaving your loved ones if you do not have a Last Will and Testament. We have frequently seen situations where close families stop talking to each other after a dispute over an estate. Nobody will have been appointed to take care of the estate, and the family could start fighting over your possessions. Furthermore, your Will is actually a powerful tool that allows you to recognise people or organizations that have made a difference to your life. It is your last opportunity to do something charitable and make a difference. It would be a pity to let that opportunity pass you by and let the government decide how your estate will be split up.

6. I’m too young to write a Will

There are a number of inherent problems in waiting until you are about to die before you write your Will. Most obviously, you probably don’t know when that moment is going to happen. Most well written Wills are to some extent “future-proof” and they can certainly be updated throughout your life as circumstances change. There is no advantage whatsoever in waiting until you are older to write your Will, but some major issues that arise if you die without a Last Will and Testament.

7. I can’t afford it at the moment

This comes up a lot because people are quoted $600 to $1,000 to prepare a Will, and then quoted the same for each update. However, there is actually no legal requirement to use the services of a lawyer to prepare a Will. If you need legal advice, we would recommend that you find a lawyer, but the vast majority of people do not need legal advice when preparing their Will. For example, if you want your entire estate to go to your spouse, and then if something were to happen to the both of you, then everything to be shared between your children, it would be unnecessary to pay for expensive legal fees. An identical Will can be prepared using our service for $34.95.

8. It’s a pain to find a lawyer and set up an appointment. I never have the time

It is rare that a lawyer will make house-calls, even for their $800 fee. Services like the one at www.legalwills.ca are addressing this issue by allowing you to prepare your own Will, at a time that suits you, from the comfort of your own home. You can prepare your legal Will in your pajamas tonight before you go to bed if you wish.

9. I used a kit. I’m good.

The most significant concern with blank form kits that you buy from a stationery store is that they give the impression that you have taken care of everything. But it is actually much more difficult than you think to cover all scenarios with a kit, which is usually not much better than starting with a blank piece of paper. Our Wills typically include about 25 clauses and are 7-8 pages long. Some kits that we’ve seen are two pages and include about 5 clauses. You are likely to have missed residuary clauses, powers granted to the trustee, trusts for minors and countless other critical clauses.

10. I find the whole idea of writing a Will confusing. I don’t even understand the most basic terms that they use and I don’t have time to learn.

Writing a Will is actually far simpler than a task like filing your taxes. Our service at LegalWills.ca guides you through the process step by step and explains the terms as you answer each question. You will see definitions for key terms like Beneficiary, Executor, Trustee, Testator, Residual estate, and be provided with simple explanations for the signing process. You do not have to have any legal training to prepare your own Will, and hundreds of thousands of people have already created their Will through our service – If they can do it, so can you. If there is anything that you are unsure of, you can send us an email or call us and we are very happy to help.

There is never a good reason to not have a Last Will and Testament in place, but there are plenty of serious consequences to dying without a Will. The whole process takes about 20 minutes and costs $34.95. It’s a task that everybody puts off for another day, but using our service, you can complete your estate planning documents today.

 

New home for our blog

This is now our fourteenth year of offering our Wills service at LegalWills.ca so we have decided to refresh the look and feel of our site. Our website and service are now fully responsive; as well as looking more modern, it is fully functional on all devices including your phone and tablet.

Since August 2010 we have been offering information and entertainment through our blog at legalwills.wordpress.com. There are well over 100 articles there, but with our newly designed site we have decided to migrate our blog over to LegalWills.ca.

So we are starting afresh, but hopefully it won’t take us long to share another hundred or so articles with you.