Probate in Canada – What it is, what it costs, how to reduce fees.

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

Making a Will in Canada – the Complete Guide to your Options

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.

Your Executor

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.

You can choose a friend or family member to take on this role, but they must be trustworthy, good with paperwork and have the interpersonal skills to work with the beneficiaries. Usually a Will allows your Executor to employ professional help if they need it, and this can be paid for out of the estate.

If you do not have a friend or family member who can take on this responsibility, you can hire a professional, like a bank or law firm. Be aware that these options can be very expensive and will take money from your estate.

Guardians for Children

If neither parent was available for your minor children, for example you were both involved in a common accident, or if you are a single parent, then somebody will have to take care of your children.

In reality what happens is that if neither parent is available, then a judge at the family courts will appoint a guardian. Hopefully people will come forward and offer themselves as the guardian and the judge will grant guardianship to the person or family that he/she considers to be the most appropriate. As a parent, by making a Will you can make an appointment in your Will and this would be the over-riding factor in the judge’s decision, together with any appointment made in the child’s other parent’s Will. If this person is still willing and able to serve as the guardian, then the judge would most likely grant guardianship to this person.

Of course, circumstances can change between making a Will and the guardianship appointment being made. For example, your guardian may have personal struggles of their own and are no longer fit to look after your children. This is why your guardianship appointment in your Will is not a legally binding appointment.

But unless there is some reason why the person that you have appointed in your Will is unwilling or unable to act, then they will almost certainly be appointed the guardian to your children.

The distribution of your assets

Making a Will allows you to describe the distribution of your assets. This includes gifts to friends, family members as well as charities and other organizations.

The recipients of your assets are called “beneficiaries”. The items going to the beneficiaries are called “bequests”. Everything that you own – your collection of assets, is called your “estate”.
A bequest can be a sum of money “$1,000 to my niece Susan Brown ”, an object “my 1971 Ford Mustang to my brother Gary White”, or a percentage of your estate “one percent of my estate to the Toronto Humane Society”. You can either give a specific bequest like this, or you can simply divide the estate “my entire estate to be divided equally between my 3 daughters”.

The distribution of your assets is made up of a plan, and also an alternate plan, in case your first-choice plan cannot work for whatever reason. Usually your Will would say something like “leave my entire estate to my wife, Sally, if she survives me. If my wife Sally does not survive me, then to divide my entire estate in equal shares between my children”. Your Will should be written in such a way that no matter what happens, there is a plan for your estate.

What happens if you die without making a Will?

You have a distribution plan for your estate whether or not you write a Will. If you write a Last Will and Testament, then the plan is of your making. If you choose not to write a Last Will and Testament, then the plan is determined by the “intestate” laws of your Province or Territory. They are actually different for every Province or Territory.

If you die without making a Will, the first problem is that there is nobody appointed to take charge. Occasionally, it may be obvious who is going to take responsibility for administering the estate, but more often than not, there is general confusion. The lack of an Executor appointment can result in fighting between family members and general chaos. Eventually, the courts will appoint an Estate Administrator, who will then have to secure the assets in the estate. Hopefully, not too much time will have passed that the assets have started to disappear.

The Estate Administrator will then have to distribute the estate according to the laws of your Province or Territory.

If you are single, with no children or grandchildren, your estate will go to your parents. If you have no parents, then your entire estate will be divided between your brothers and sisters. If you have no siblings, then between your nieces and nephews. If you have no nephews and nieces, then your estate will go to your cousins. Only if you have no living relatives does your estate go to the government !!

If you are married with no children, then your estate will eventually all flow to your spouse. But without a Will, the process can be slower, and assets are frozen in the meantime.

If you are married with children, things get complicated and no two Provinces or Territories have the same distribution plan for your estate. The distribution plan for somebody without a Will is almost never the same as a distribution plan written by somebody with a Will. It would be very unusual for any married person with three children aged one, three and five years old, would write a Will with the following distribution plan:

“I leave $200,000 to my spouse, Sarah. The remainder should be divided such that Sarah receives one third, and my three children share the remaining two thirds”

This is what would happen in Ontario if you died without making a Will.

How can you write a Will?

There are, broadly speaking three options for making a Will:

Option 1: Use a blank piece of paper or blank-form Do-It-Yourself Will kit

This is the cheapest approach, often free. But it is actually the most difficult way to prepare a well-drafted Last Will and Testament. Legally, as long as the document states that it is your Last Will and Testament and is signed in the presence of two adult witnesses, then it is an acceptable Last Will and Testament. But this doesn’t necessarily mean it is a good one. Two common mistakes made with blank-form Will kits are:

Mistake 1 – Failing to handle different scenarios

You may have a good plan for your assets if something were to happen to you, but what if your main beneficiary is involved in an accident at the same time. Or your Executor is no longer capable of performing the tasks. Or your chosen guardian has recently had triplets of their own and can no longer add more children to their family. Simple Will kits usually fail to cover the “what if” scenarios.

Mistake 2 – Attempting to list one’s assets

The most common mistake with DIY Will kits is making a Will assuming that it is coming into effect today. You may look around your house and start listing your possessions and deciding who will receive what. Then list your bank accounts so that your Executor knows where to find everything.
You should not include a list of assets in the Will itself. You don’t know when your Will is going to come into effect, and your assets are likely to change over time. This would require you to update your Will every time you opened a new bank account or made a major purchase. Furthermore, once a Will is probated, it becomes a public document that everybody can read. You may not want details of all of your assets made public.

If a particular item has a specific beneficiary that is different to the main beneficiary of your estate, then yes, it must be included. So if everything is going to say, your son , except for a piece of art which is going to your nephew, then the piece of art has to be included in your Will.

It does make sense to list your assets in order to help your Executor administer the estate. They have to gather your assets, and it is helpful to have the accounts documented so that they can be sure that nothing is forgotten. But not in the Will itself.

Option 2: Use the services of a lawyer (or Notary in BC or Quebec)

This has always been the traditional approach for making a Will. If you work with a lawyer to prepare your Will, you have the option of asking for legal advice. If you have a particular situation that needs consultation with an expert in the law, then this is a great approach. For example, if you had a child with special needs receiving government benefits and you would not want an inheritance to impact these benefits, there is a particular trust called a Henson Trust that can be created. It is a sophisticated legal tool that should not be prepared by somebody with no legal training. However, most people when preparing their Will may not need this type of legal advice, so working with a lawyer may mean that they are overpaying for services that they are not using.

estate lawyer

Also, be aware that a family lawyer is not an estate planning or tax expert. If you need advice on structuring your estate to minimize taxes, then you may need to work with a team of advisors. If your estate is very large, then you may need to work with an accountant as well as a family lawyer.
Although working with a team of professional advisors may provide the best answers, it can be expensive, and it is certainly not the most convenient approach. Making an appointment with a lawyer, particularly for working professionals, it often cited as the main barrier to making a Will.

Option 3: Use an online interactive service

Thankfully there is a middle ground that allows you to prepare a professional quality Last Will and Testament with the price and convenience of a Will kit. This is the online interactive Will service.
Much like the interactive services for preparing your taxes, these services guide you through the process for making a Will. They are specific to your Province or Territory, and check for errors. For example, if you have young children, you are prompted to name guardians for the children, and set up trusts. After answering all of the questions, the service compiles a document that can then be downloaded and printed.

The document should then be signed in the presence of two adult witnesses to turn it into a legal Last Will and Testament.

Canadian Will

If you need to update the document to reflect any changes in your personal situation, you can simply login to your account, make the change and then download the new Will. All from the comfort of your home.

Over the last 15 years these online services have become more robust and sophisticated, so they no longer only cover the simplest of situations. Some, like the service at LegalWills.ca, include pet trusts, lifetime interest trusts, coverage of foreign assets and more.

Do you need a lawyer to write a Will?

Lawyers are available if you need legal advice. There is absolutely nothing in any legal statute that requires you to use the services of a lawyer to prepare a Will. Everybody has a right to prepare their own Will, and many do not have financial or geographic access to a lawyer.

At a minimum, a Will must state that it is your Will, be signed and dated, and be signed by two attending witnesses. Those witnesses can be any two adults who are not beneficiaries in the Will (or in some jurisdictions, they cannot be the spouse of a beneficiary). In general, we recommend that the witnesses have absolutely nothing to do with the contents of the Will.

A lawyer can help you if you need legal advice. But most people do not need legal advice when writing a Will, particularly if you are using software.

To make your document a legal Last Will and Testament you should firstly download and print it. It must then be signed in the presence of two adult witnesses who are not beneficiaries in the Will. These can be any two adults; friends, neighbours or co-workers, as long as they have nothing to gain from the contents of the Will.

Once it is signed and witnessed, it becomes a legal Last Will and Testament. There is no requirement to have the document notarized, stamped, or signed by a lawyer. Nor does the document need to be registered.

legal will

You simply store the document somewhere safe, in a place that is known and accessible to your Executor. After you have passed away, your Executor should take the document to your local probate court, where it is accepted as your Will, and filed with the courts.

Your Executor is then given a “Grant of Administration” that they can use when gathering your assets. A bank will ask to see the Grant of Administration before releasing funds to the Executor.

What other documents do you need?

The complete Estate Plan

Everybody needs a Will. At some point, you will die, and by making a Will you leave your family and loved ones with clear instructions on what should happen next. There are some other documents that we consider to be a part of a complete Estate Plan. All of these documents can be created at LegalWills.ca.

Funeral wishes

There is a common misconception that your funeral wishes belong in your Will, but in fact, there are very good reasons why you should write your funeral wishes in a separate document, and simply store this with your Will.
These are just a few of the reasons why your funeral wishes should be documented separately:

1. Your Will is a legal document that must go through the formal probate process before it is accepted as your Will. There may be multiple versions of your Will, and the probate courts officially certify one Last Will and Testament. By the time this is done, your funeral would likely have already taken place.

2. Your funeral wishes are usually very personal and may speak about the music that you want played, the general tone of the ceremony and other quirky wishes. They don’t really belong in a legal Last Will and Testament. Furthermore, once your Will is probated, it is a public document, and can be read by anybody. Some of your personal funeral wishes may not be for the general public.

3. Your funeral wishes are not legally binding. They are an expression of your wishes, but they do not have the same legal rigour as a Last Will and Testament. Your funeral wishes do not have to be signed in the presence of two witnesses, and can be updated at any time, and you can even make handwritten updates. You cannot do this to a Last Will and Testament.

Inventory of Assets

Most Wills have a “residual clause” that describes a distribution plan for everything that is left after debts, taxes, funeral expenses and specific gifts. But this clause typically says something like “my entire estate to be divided between my children”.

Your Executor is then tasked with gathering that entire estate. How will they know the extent of your assets? Including potentially digital assets like online accounts? It is important that you prepare an inventory of assets that can be stored with your Will.

At the end of December 2017, the Bank of Canada announced that there were approximately 1.9 million unclaimed bank accounts, worth some $742 million. Many of these were for people who died, but their Executor wasn’t aware of the account.

Financial Power of Attorney

The preceding documents are all useful once you have died. But what if you were incapable of handling your own affairs, but you were still alive? This could mean that you were in a coma, or you developed a mental illness or cognitive impairment. Your financial Power of Attorney allows you to name a person to take responsibility for your finances if you were ever to lose capacity. A Power of Attorney is immediately cancelled as soon as you pass away.

This can be very useful if you have bills to pay, including medical bills, or costs associated with a nursing home.

Critically, this document has to be written while you are mentally competent, to come into effect if you lose competence. In many cases the document may never be used. But if you ever lose capacity to handle your own financial affairs, it is too late at this point (or at least, much more difficult) for somebody to be appointed Power of Attorney over your affairs.

Living Will (Healthcare Power of Attorney and Advance Directives)

The final document is the appointment of somebody to make medical decisions on your behalf; a Healthcare Power of Attorney. This document is often accompanied by an expression of your wishes for end-of-life care, called an “Advance Directive”. Together these documents are sometimes referred to as your “Living Will”.

The service at LegalWills.ca

Hopefully by now you have an understanding of the importance of making a Will, and the different approaches to preparing a Will.

LegalWills.ca is Canada’s leading online Will service provider. We have been in business since 2001 and have helped thousands of Canadians prepare their estate planning documents. Many of our Wills have gone through the probate process, and we have never once heard of an issue with one of our Wills. We have an A+ rating with the Better Business Bureau and over 500 five-star reviews on Google.

LegalWills.ca reviews

Our Will writing service is made up of nine sections which guide you through the process of preparing a Will. We will ask you about your key appointments, your family situation, allow you to set up trusts, make charitable bequests, and even make provisions for the care of pets. The whole process for preparing a Will takes about 20 minutes.

A word on Joint Wills

Although it is legally possible to create a joint Will with one document serving two people, it is not supported at LegalWills.ca.

Joint Wills used to be created with the intention of saving the time and expense involved in creating two separate Wills. Most lawyers practicing today, however, avoid creating joint Wills because of the awkwardness and difficulties that can arise in interpreting their terms, as it can leave the surviving partner bound by terms that make no sense once the first partner has passed away.

Using the service at LegalWills.ca we encourage each partner to prepare their own Will individually. You would name each other as your main beneficiary, and then have an alternate plan in case you were both involved in a common accident. This is called a Mirror Will and LegalWills.ca has a special tool for preparing a Mirror Will, so that information does not have to be re-typed into two different accounts.

The opinions expressed herein by “LegalWills.ca” are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed within this document are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No communication with “LegalWills.ca”, on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney’s advice and counsel for any information that has been published herein by “LegalWills.ca”.

Mirror Will – What is it? When should I use it? Is it right for me?

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.

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Setting up a Pet Trust: who cares for your pet after you are gone?

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

The specific grounds to challenge a Will in Canada

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.
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It doesn’t matter how young you are, you need a Will.

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.No matter the age, you need a Will

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Preparing a Last Will and Testament – top ten reasons why you need one now.

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.

Preparing a Last Will and Testament

               Canadian adults with a Last Will and Testament

Legal Will

       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.

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Write a Will in Canada: the complete guide to our Canadian Legal Wills

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;

  1. 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.
  2. 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.
  3. 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

Have you “Made a Will”? Make it your New Year’s Resolution.

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.

Making 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

When you die, what happens to your Facebook and social accounts?

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

Why do most people avoid writing a Will?

Why Do Most People Avoid Writing a Will?

Why do most people avoid writing a Will? Recent headlines suggest that people can avoid paying taxes for a considerable period. You just have to know your way around the system. However, none of us can cheat death forever.

“In this world nothing can be said to be certain, except death and taxes”

Benjamin Franklin

Immortality is not an option. We all know that one day our time will come. Yet most of us just don’t want to think about it. This is probably one of the most common reasons for not writing a Will.

A Will allows you to decide what happens to your assets and even your children if you die. So why is it that less than half of the adult population of Canada have made a Will? It is an easy process which doesn’t cost much in terms of time or money.

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Using an Estate planning lawyer? Here’s some questions to ask…

Wondering whether our service is right for you? considering using an estate planning lawyer?

We know that 62 percent of Canadians don’t have a Will in place. A further 12 percent have a Will, but it’s out of date.

Even with that harrowing stat, the legal community still try to warn people against preparing their own Will. Claiming that you can only obtain a quality Last Will and Testament from an estate planning lawyer. Any approach to writing your own Will is going to result in pain for your family and loved ones.

In truth, there was some merit in this argument about 20 years ago when the only do-it-yourself Will writing options were a blank piece of paper, or a blank form Will kit. Both approaches are a disaster waiting to happen, and many estates went through protracted legal battles to settle an ambiguous instruction. Or worse, a Will was simply thrown out because it wasn’t signed correctly.

Thankfully in the years since LegalWills.ca came online in 2001, the online interactive Will writing services have come a long way. Much like tax preparation software that faced a similar backlash from tax preparing accountants, the use of online interactive Will writing services has grown year by year.

Will writing office

Online Will writing services have also improved to a point that for 99 percent of people, the final Will document is indistinguishable from a Will created by an estate planning lawyer. We know this because we use the exact same software used by any estate planning lawyer in Canada. We’ve just give you direct access to it.

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Guardian for your children – How to name a guardian in your Will.

How to Choose a Guardian for Your Children

One of the most important things which you need to consider when you are making your Will is how to choose a guardian. They will take care of your minor children in the event of your death. This really isn’t something that anyone ever wants to think about, but it is one of the most important decisions that you need to make. No one likes to think of their own mortality. However, making a Will and appointing a guardian is one of the most caring things that you can do for your minor children.

If you do not choose a guardian for your children and both parents die, the court will have to appoint one. This will usually be a willing volunteer. However, you really don’t want to leave something so incredibly important to chance. A judge can appoint whoever they want to. This person could be your worst nightmare, but a judge may have of way of knowing that if you haven’t made your wishes clear. Continue reading

The Free Will Kit – why they are not such a great idea

There are two types of people who comment on our pricing, those who have previously used a lawyer, and those who are considering the use of a free Will kit.

The first group usually say;

“Wow, I was quoted $800 to write my Will, and your service is less than $40. How can your service possibly be any good?”

the second group say;

“$40 for a Last Will and Testament? Why on earth would I pay that if I can pay nothing with a free Will kit?”

In this article we are going to address the issue raised by the second group.

dollar store

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The Affidavit of Execution and signing your Will. What makes a Will legal?

One of the most common misconceptions associated with writing your own Will is around the signing process. We answer this question ten times a day, so I thought I would provide some explanation. Many of you may have heard of an Affidavit of Execution, but you may be unsure of what it is, and what role it plays in authenticating your Will.

 

Writing your own Will – is it legal?

There are generally speaking three approaches to writing your Will.

1. Working with an estate planning lawyer or Will writer.

In some Canadian provinces (particularly BC and Québec) Notary Publics also have the authority to prepare a Will for you. Writing your Will with a lawyer or notary gives you a good chance of getting a quality Last Will and Testament (but not a guarantee!!). The downside of course is that it is often expensive, and certainly inconvenient to arrange an appointment with a lawyer. Even if you managed to write your Will, you probably wouldn’t make the time to update it to reflect any changes in your circumstances. The time and money barriers are so significant, that in a recent survey we found that 62 percent of Canadians didn’t have a Will. Of those that did, 12 percent were out of date. Continue reading

Your Executor – the most important appointment of your life

A key question that many people struggle with is: Who will be your executor in your Last Will and Testament?

Okay, who or what exactly is your Executor?

First of all, it is important to know the definition of an executor and what role they play in your last will and testament.

It is your executor’s responsibility to handle your last wishes. The executor is in charge of handling the estate and distributing property and possessions according to your instructions. It is also their duty to settle debts; a required step before your executor can distribute inheritances.

Your Executor

We provide a complete list of Executor responsibilities as part of our services at LegalWills.ca.

Securing your Estate

Your executor must keep your assets safe. You may have heard of terrible episodes of a person dying and the family descending on the estate. It can become a free-for-all where things just start disappearing. “He always told me that I could have this” says the favourite niece as she walks out of the door with the Andy Warhol pencil sketch. Continue reading

Number of Canadians without Wills significantly under-reported

There appears to be divided opinion on the importance of Wills. There are a group who believe that a Will is a document to be written on one’s deathbed, as a final statement to explain who will receive the family heirlooms. Fortunately, most of us are wiser, and understand that a Will is something that everybody needs, no matter how old, or how wealthy. A Will is a vital part of your financial plan that is written when you are young, and updated throughout your lifetime.

“Fortunately I don’t need a Will yet”

A caller contacting LegalWills.ca on behalf of their mother

But statistics show that what we know about Wills, and what we actually do about Wills are two very different things. I think most of us were shocked to hear that Prince didn’t have a Will, while silently thinking that it’s something that we really need to get to ourselves.

Recent surveys have been quite consistent in putting the number of Canadians without a Will at just over half. A 2013 CIBC survey put the number at “about half”, while a 2012 LawPRO survey claimed that 56% of Canadians did not have a Will in place. Most recently, in 2014 the BC Notaries reported a number of 55% of British Columbians without a Will.

At LegalWills.ca we were interested in not only the number of people without a Will, but also the number of people with out-of-date Wills. This came from a social discussion on Wills that went something like this;

Dave: I do have a Will, but I wrote it a while ago.
Me: you think it may need to be updated?
Dave: Well, I wrote it just after we got married, but before we had the children.
Me: Are you kidding me? your girls are now 24 and 21 years old !! you don’t have a Will. Continue reading

Digital assets in your Last Will and Testament – you need a plan.

As we spend more time online, our social, sentimental, and financial assets have begun to migrate online as well. Collectively, we have come to call these items, your digital assets.

Unfortunately, people all too frequently neglect the digital component when they write a Will. You probably haven’t considered creating a plan for your Facebook, LinkedIn or Twitter accounts. Maybe you have recently experienced the loss of a friend and seen first hand the mis-management of online accounts for people who are no longer alive, I know I have. Sadly, three of my ex-colleagues have died, and every year, LinkedIn still prompts me to congratulate them on their work anniversary.

But there is much more to digital assets than your social accounts. Some of these assets simply need to be managed, some need named beneficiaries, and some have real monetary value and should be included as part of your estate.

 

Your Digital Assets – what are they?

You can divide the three most common forms of digital assets into three categories: social, sentimental, and financial digital assets. You may have a plan for your social assets, but having a comprehensive plan for your sentimental and financial assets is probably more important. Continue reading

The Canadian Will Kit – and the evolution of Will services

Many of us remember the TV ads for the Canadian Will Kit. It later became the Complete Canadian estate planning kit. It’s been over a decade since those ads ran on TV and Radio, and to this day, we still receive calls from people looking for one.

Unfortunately, these kits became synonymous with “writing your own Will”. The kits were bad, the Wills that they created caused many problems, and so people still think that writing your own Will is a bad idea.

 

The common criticisms of “boilerplate” Wills like the Canadian Will Kit, and “one-size fits all” kits are still trotted out by lawyers advising people against writing their own Wills. But these criticisms are woefully out of date, and simply no longer apply to online Will services like the one at LegalWills.ca. Continue reading

Six consequences of dying intestate in Canada

Dying intestate means that you have died without a Will.

dying intestate

I’m not sure that anybody plans to die without a Will. After all, most people don’t plan to die. But it happens. In fact, the vast majority of Canadian adults do not have a Will in place, and most of these people think that they will probably have plenty of opportunities to write one at some time in the future.

Dying intestate…who does that?

Amy Winehouse, Barry White, Jimi Hendrix, Sonny Bono and Bob Marley would make a terrific band. However, what brings them together in this article is that they all suffered the ignominy of dying intestate.

But you don’t have to be young with a rock and roll lifestyle to end up dying without a Will. Roman Blum was 97 years old with an estate valued at $40M, he died without a Will and and incredibly with no heirs. His entire fortune in this case, was destined for the government coffers. Continue reading