We receive a call almost daily that sounds something like:
“My father has recently died. We know he had a Will, but we can’t find it. What can we do?”
The simple answer is, keep looking. If you die, and nobody can find your Will, the result is exactly the same as dying without a Will. It is called “dying intestate” and your estate will be distributed according to Provincial laws.
All of the time (and money) that you put into preparing your Will counts for nothing if nobody can find it.
Will Registry in Canada
There are some confusing aspects of Will Registration to clear up first.
Every Will in Canada is registered after it is probated. Most Wills in Canada are probated, but this happens after you have died. If you are looking for the Will of somebody who has died, then you can usually find the Will with an application to the local probate courts.
Disclaimer: This article is using the Duke and Duchess of Sussex as an illustration of a widely experienced situation. We are not suggesting that Prince Harry and Meghan Markle use our service; it would be up to them to decide whether the Expat Will service at LegalWills.ca is a good fit for them. We have certainly seen people with wealth, surrounded by a legal team, write their own Will, or even die without a Will. But each individual would need to decide the best approach for themselves. We refer to them as “Harry and Meghan” in the article, but it could be anybody.
Disclaimer 2: This article is not legal advice. It is presented as general information which may or may not apply to your own personal situation.
You have probably heard by now, the Duke and Duchess of Sussex are moving from the UK to Canada. There is a chance that they may buy property in Canada. Prince Harry is a UK citizen. Meghan Markle is an American citizen. Their son, Archie, is probably dual citizen UK and US, now being raised in Canada.
What does this all mean for their estate planning?
Explanation of the answers
This was a tough quiz covering estate planning in Canada. In this article we will provide you with some explanations for our answers.
If you have young children, it is critical to write a Will. The challenge of course is that you are busy, and co-ordinating time with a lawyer, and perhaps your partner is very difficult. So difficult, that this is a task that is unlikely to make it to the top of the To Do list for today, or even this week.
Fortunately online services like the Will writing service at LegalWills.ca makes the process much most convenient and of course significantly more affordable than preparing a Will with a lawyer.
This article gives an overview of why a Will is critical, what you can do within a Will, specifically if you have children, and how you can prepare a Will in a cost effective and convenient way. We also discuss why and how you can update a Will if circumstances change.
What are the key elements in a Will?
You probably think of a Will as a document that describes the distribution of your assets (possessions) after you have passed away. This is, of course, a significant part of a Will, and one of the most important reasons for preparing one.
LegalWills.ca features that are not supported by any other leading online Will service.
We often see reviews of online Will writing services. These reviews typically look as far as pricing, look and feel of the website, maybe support options. Unfortunately reviewers rarely take the Will service itself for a test drive. They don’t usually imagine different scenarios to determine how capable the Will service is in addressing different demands.
At LegalWills.ca we confidently regard our Will writing service as the most complete, and most flexible service of any online Will application.
In this article, we will take a quick look at just ten things that you can do at LegalWills.ca, things that are not supported by other leading online Will writing platforms.
Do you have a Will already? you just need to make a slight change to it? Perhaps you had a lawyer prepare your Will for several hundreds of dollars you don’t want that money to go to waste, but now you need to update it. After doing some research, you have determined that a codicil is what you need.
Let us explain exactly what a codicil is, and why it’s probably not the solution you are looking for.
The origins of a Codicil
The first step in understanding the role of a codicil is to look at the history of the law related to Wills. In Canada, Estate planning laws were based on the UK Wills Act (except for the Province of Quebec). This law was written in 1837, and surprisingly, not too much has changed in the last 180 plus years.
In 1837, if you wanted to write a Will it would have looked like this
Imagine, a week after you had gone to the trouble of having your Will prepared, you wanted to make a change. The Will writer wouldn’t have wanted to rewrite the whole document, so the Wills Act made a provision for a codicil. It’s a “middle English” word meaning “little codex”, or according to Mirriam-Webster “a little bit of writing on a small piece of writing material, used to add to or change something about a larger piece of writing.”
A Financial Power of Attorney appoints somebody to take care of your financial affairs while you are alive, but usually after you have lost capacity.
This document should not be confused with either a Last Will and Testament (or simply a “Will”) or a Living Will.
A Last Will and Testament makes key appointments and describes the distribution of your estate after you have died.
A Living Will is a document that is also in effect while you are alive, but deals only with your health condition and medical treatment. It usually combines the naming of a Healthcare Proxy with an expression of the type of treatment you wish to receive through an Advance Directive.
Together, these three documents make up a complete Estate Plan in Canada.
What types of Power of Attorney are there?
The first classification is the Power of Attorney that directs your medical needs; a Healthcare Power of Attorney. Also known as a Healthcare proxy. In this document, you name a person to make medical decisions on your behalf. Most people when they talk about a Power of Attorney are not meaning a Healthcare document.
Two of the most frequently asked questions we receive at LegalWills.ca are:
- How come your Wills are so cheap?
- Why are your Wills so expensive?
In this article, we will discuss the cost of a Will. We will explain the different ways to prepare a Will, why each approach costs what it does, what you get and don’t get when preparing a Will in a certain way. Finally, we will explain what goes into our pricing of $39.95 for our Will service.
Executive summary of this article
- A Last Will and Testament is a 4-6 page document that allows you to make key appointments, and describes the distribution of your assets (bank accounts, property etc) after you have died.
- There are broadly speaking 3 ways to make a Will; i) visit an estate planning lawyer, ii) attempt to write your own using a do-it-yourself Will kit or blank sheet of paper and iii) use interactive software that guides you through the process.
- Depending on the approach you take, this document can cost you absolutely nothing, or over $1,000. But each approach is a good fit for certain situations, and each has certain pros and cons which we explain in the article.
- Our Will service costs $39.95. This covers our costs of customer support, legal team, software development, advertising. We do not sell your data or sell advertising to you. Our costs are covered by the price we charge for our Will service.
What exactly is a Last Will and Testament?
If you’re reading this, chances are you’ve heard of Make a Will Week or Make a Will Month. But what actually is Make a Will Week? Why did it begin? What’s the point and what does it mean for you? Several Provinces recognize their own specific week or month annually to promote the same message: you need to make your Will. In the following article, we’ll go into why this is so important and answer several of the questions that you may have on Make a Will Week and Make a Will Month.
Make a Will Week and Make a Will Month are annual awareness campaigns, scheduled by their respective provinces, with the goal of informing and educating adults on the need for a Will.
“Determining how your wishes are expressed is a critical decision that impacts families and loved ones”, stated Lynne Vicars, President of the Ontario Bar Association – the originators of Ontario’s Make a Will Month.
Introduction to Preparing a Will
Everybody should have a Will. Not making a Will is unfair to those you leave behind. Even if your plans for estate distribution are simple and you do not have many assets, it is still much easier for the people that you leave behind to work with a Will than to resolve the estate of a person who has died intestate (without a Will). If you do not feel that you have significant assets now, remember that your Will only comes into effect when you die, not now, and you cannot possibly predict how large your estate will be when your Will is required. Preparing a Will is one of the most important tasks you can undertake if you have loved ones. Sadly, most of us put it off until it is too late.
By law, any competent adult can make their own legal Will; the law does not require you to have an attorney or a lawyer, to do this. A Will does not need to be a complicated document; it simply has to clearly state your wishes for the distribution of your estate.
Must my Will go through probate?
To understand whether or not your Will needs to go through the probate process, you have to understand what happens after you have died.
Hopefully you have written a Last Will and Testament.
In your Will you name an Executor. This is the person that you entrust to gather and secure your assets. Your Executor then has to distribute the assets according to the instructions in your Will.
The Executor must collect up everything you own, keep it safe and secure until everything has been collected, and then pass these possessions and financial assets to your beneficiaries.
Let us imagine a scenario.
Imagine your Executor going to your bank and presenting them with the Will. They explain to the bank that you have died and they show your Will to the cashier. The Will names your Executor. The person you have named shows their ID and they request the contents of the bank account. This person could even be one of your own children. Continue reading
What is the purpose of a Will?
Your Last Will and Testament allows you to speak after you have passed away. It does absolutely nothing and has no powers whatsoever all the time you are alive. But as soon as you die your Will has two key functions: it allows you to make key appointments and it allows you to describe the distribution of your assets. These assets include money, possessions, houses, investments, everything that you own. Making a Will is one of the most important responsibilities of every adult, and it should not be put off until a distant day in the future when you are “old”.
You should not think of making a Will as a once-in-a-lifetime event. You should always have a Will in place that reflects your current situation. You should write your first Will as soon as you are an adult, and then update it throughout your life as your circumstances change.
Your Key Appointments
By Making a Will you can make two key appointments.
This is the person you entrust to carry out the instructions in your Will. They have the responsibility to arrange your funeral, gather and secure your assets, and then distribute them according to the instructions in the Will. It is a very important appointment. Continue reading
What is a Mirror Will?
A Mirror Will is actually two Wills, usually created by partners or married couples. The two Wills typically name each partner as the main beneficiary of the other partner’s estate. There may be other specific gifts within the Will, such as gifts to charities, but the two Wills look identical to each other, except that typically, the name of the main beneficiary is the partner of each testator.
Person A leaves everything to Person B. Person B leaves everything to Person A.
Then for the two Wills to be true mirror Wills, each Will describes an identical alternate plan in the event that both partners are involved in a common accident. Often this is that the entire estate is then distributed to the children.
According to a recent survey conducted by BMO Bank of Montreal, 89 percent of Canadians consider their pets to be a member of their family. It stands to reason then that most people would want to ensure that somebody looks after their pet after they are gone. But hardly any Canadians have set up a pet trust to ensure that their pet receives proper care after they are gone.
If you make no provision for your pet as part of your estate plan, your dog or cat could potentially end up at the humane society. In 2015 82,000 cats and 35,000 dogs were taken into Canadian shelters, of which 48 per cent of dogs and 57 per cent of cats were adopted.
A Pet trust is not just for the wealthy
Whenever there is mention of a pet trust in the news, it is usually because of an extreme bequest, or staggering wealth of the pet owner. We saw is with Leona Helmsley who in 2008 left $12 Million to her pet Maltese. Continue reading
How to Contest or Challenge a Will
For many of us the loss of a family member is a very upsetting and stressful time, and we are not always thinking clearly during this emotional state. As a result, there are often times when an estate is distributed but some beneficiaries feel that it has not been done in accordance with the Will or that they have still missed out in some way. This isn’t uncommon and as any estate lawyer will tell you, a large part of their work involves resolving estate disputes between family members and other beneficiaries.
But if you are tempted to challenge a Will, be aware that there are specific reasons why you can challenge a Will. Although you may feel cheated, this may not alone be sufficient grounds for contesting a Will.
Some General Considerations
If you believe that you have not received a sufficient benefit under a Will and you fit certain criteria, you may be able to challenge a Will. Contesting a Will means applying to the court to have the Will, or parts of the Will, deemed invalid. While there may be a good reason you were left out, there may also be other possibilities.
Since contesting a Will is expensive and time-consuming, it is a good idea to get legal advice before you proceed. In addition, contesting a Will requires formal steps and procedures, and will only be successful if you can provide evidence to support your claim. Because the maker of the Will is deceased, any statements that you allege the deceased said, must be corroborated or confirmed by a witness. Depending on the jurisdiction, you may have to go to mediation and try to resolve the issues. If the case is not settled at mediation, it will then go to trial.
I’m young – do I need a Will?
You need a Will. In fact, there is never a circumstance where planning to not have a Will is a good idea. Dying without a Will is not a strategy, no matter how old or young you may be, you need a Will.
On a daily basis not many of us like to think about our inevitable death. It’s morbid and a subject that most of us don’t want to pay much attention to. Like going to the dentist for a root canal or having that screening at the hospital, there are some uncomfortable scenarios that we put off for as long as possible. Writing a Will should not be one of them.
But the thought of going over your possessions and paying a lawyer can be too much for some people. However, there comes a time when we need to face the cold hard reality that we won’t live forever and having a Will really isn’t for your benefit, but you write a Will for your loved ones. Granted, creating a Will may not be fun, and when you’re young there are a million and one things you would rather do but it’s actually not such a hard thing to do once you get over the mental hump. And you may actually learn something along the way.
To help you see the benefits of having a Will we have outlined why you’re (almost) never too young, and no matter the age, you need a Will.
There have probably been a number of situations in your life when you have thought, “I should be preparing a Last Will and Testament.” And for some reason or another you have never actually taken the steps needed to update or create your Will. Don’t feel too embarrassed, because you are certainly not alone. In 2016 only 38 per cent of Canadian adults had signed a legally valid Will. Of those that did, one third were out of date.
Even if the data was restricted to Canadians over the age of 35, only 38 percent of those polled had a legal, up-to-date Will.
Canadian adults with a Last Will and Testament
Canadian adults over the age of 35 with a legal Last Will and Testament
This leaves a lot of people legally unprepared and their families unprotected or provided for.
Learn to write a Will at LegalWills.ca
An increasing number of Canadians are turning to services like the one at LegalWills.ca to write a Will. But every day we received requests from our customers to clarify a term, or clause in their Will. Usually this request comes with an apology for their lack of understanding, and every time we have to give the reassurances that;
- Although writing a Will is extremely important, it is not something that most of us do more than once of twice in a lifetime, so there is no reason to expect anybody to understand these terms.
- A Will is such an important document, but the legal profession intentionally tries to make the document more complicated that it needs to be by using arcane language. There is absolutely no reason for a Will to say, “I give, bequeath and devise” when a simple “I give” would work. Or to say, “I nominate, constitute and appoint” when a simple “I appoint” would mean the same thing. But using arcane language is a way of pushing people into using the services of a legal professional because it seems beyond the capabilities of the layperson.
- Nobody should be required to learn all of these terms in order to write a Will, and there are no clear concise guides that we could find.
Having said that, our Wills still use a lot of legal language, because the document is based on Continue reading
It is that time of year again. The time when we all make New Year’s Resolutions for things that we know we really ought to do, but never quite get around to. We all know the popular ones. Go to the gym, lose weight, spend more time with our family. However, there is one New Year’s Resolution that we should all make sure that we keep. Have you made a Will? We should prioritize “making a Will“. Before you head to the gym and pay to join again, make sure that you protect your family and loved ones by writing a Will.
So many people do not make a Will, but really there is no excuse not to. It is one of the most important things that you should do to make sure that your family and friends are provided for in the event of your death. Continue reading
What Happens to Your Facebook Account When You Die?
When we are making a Will, we know that we must think about our personal assets such as our house, money and possessions. However, have you ever stopped to think about what would happen to your social media accounts? Facebook has almost 1.8 billion users. You are most likely one of them. Have you thought about what happens to your Facebook account when you die? Even though many of us spend a great deal of time on Facebook, most people simply don’t think about what will happen to the account after they have died.
Facebook now gives you a number of options about what should happen to your account when you pass away. It is one of the most helpful of the social media networks in clarifying your choices. There are three choices you can make about what happens to your Facebook account when you die. You can simply delete the account, memorialize it or download the contents and then delete it. Just take some time to think about which option is the best for you. Once you have made your choice, Facebook has made it very easy for people to carry out their wishes. Continue reading