wills

Every adult should write a Last Will and Testament. It names key appointments, like your Executor and guardians for your children. And also describes the distribution of your estate after your death. Dying without a Will means that Provincial law will effectively write your Will for you. A Last Will and Testament is not written once in a lifetime, or just before you die. Every adult should write their Will and then update it throughout their life as their circumstances change.

Living Will and Last Will: What’s the Difference?

Planning for the later years of your life requires the right legal documents. A common area of confusion is understanding the differences between a last will and a living will. 

Although a living will and a last will may sound like they cover the same territory, these documents serve entirely different purposes; knowing how they differ will help you pick the one that’s best for you or decide if you need both. So, with that in mind, what follows in this blog is a brief overview of the main distinctions between a living will and a last will and how they both function and are administrated.

We often have people who confuse the two documents as being the same. People are not always aware that the documents are different. 

It is easy to remember the difference by thinking of the words “living” and “last.” A living will takes effect when you are still living and gives health care providers instructions for treating you while you are alive.

A last will and testament describes your final wishes for your property and your minor children. It is not effective until you die, and you can revoke or change it as long as you are living. The final last will and testament you write will be one of your last legal documents to become effective.

What is a Living Will?

The terms “living will,” “health care directive,” and “advance directive” all refer to the legal document that lets people state their wishes for end-of-life medical care.

A living will, despite its name, isn’t at all like the wills that people use to leave property at their death. A living will, also called a directive to physicians or advance directive, is a written, legal document that spells out medical treatments you would and would not want to be used to keep you alive, as well as your preferences for other medical decisions in case you become unable to communicate your decisions. For example, you may put a do-not-resuscitate directive in your living will. Other decisions often include the use of breathing or feeding tubes, palliative care or organ donation.

Doctors and caregivers will refer to your living will to guide your quality of care and decide which life-sustaining measures to take if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia or near the end of life.

It is possible to change or revoke a living will as long as you are capable of doing so. It has no power after death.

Don’t overlook a living will in your estate planning. Without a document expressing those wishes, family members and healthcare professionals are left to guess what a seriously ill person would prefer in terms of treatment. They may end up in painful disputes, which sometimes make it all the way to a judge for final decision-making.

Creating Your Medical Care Directive

Advance directives aren’t just for older adults. Unexpected end-of-life situations can happen at any age, so it’s important for all adults to prepare these documents.

You can create a legally binding health care directive (living will) without paying an attorney by using a reputable online service like Legal Wills to state your end-of-life wishes for medical care in as much or as little detail as you’d like. For example, it’s common to direct that “palliative care”—that is, care to decrease pain and suffering—always be administered, but that certain “extraordinary measures,” like cardiopulmonary resuscitation (CPR) not be used in certain circumstances.

By planning ahead, you can get the medical care you want, avoid unnecessary suffering and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to make on your behalf.

Choices That Matter

A living will should designate a health care agent, who will help organize your medical care if you are unable to do so. It should also say what treatments and level of care and support you might wish or not wish if you become unconscious, or a severe accident occurs which may render you incapable of making such care decisions yourself. For example, do you only want treatment if a cure is possible? Would you like to be kept on life support to extend your life in any situation? Or only if there is hope of recovery? Do you want palliative care to ease pain and discomfort while terminally ill?

You should address a number of possible end-of-life care decisions in your living will, such as:

  • Mechanical ventilation takes over your breathing if you are unable to breathe on your own. Consider if, when and how long you would want to be placed on a mechanical ventilator to keep you alive.
  • Tube feeding supplies the body with nutrients and fluids intravenously or via a tube in the stomach. Decide if, when and for how long you would want nutritional and hydration assistance.
  • Cardiopulmonary resuscitation (CPR) restarts the heart when it has stopped beating. Determine if and when you would want to be resuscitated by CPR or by a device that delivers an electric shock to stimulate the heart.
  • Antibiotics or antiviral medications can be used to treat many infections. If you were near the end of life, would you want infections to be treated aggressively or would you rather let infections run their course?
  • Palliative care includes any number of interventions that may be used to keep you comfortable and manage pain while abiding by your other treatment wishes. This may include being allowed to die at home, getting pain medications, and avoiding invasive tests or treatments.
  • Organ and tissue donations for transplantation can be specified in your living will. If your organs are removed for donation, you will be kept on life-sustaining treatment temporarily until the procedure is complete. To help your health care agent avoid any confusion, you may want to state in your living will that you understand the need for this temporary intervention.
  • Donating your body for scientific study also can be specified. Contact a local medical school, university or donation program for information on how to register for a planned donation for research.

In determining your wishes, think about your values. Consider how important it is to you to be independent and self-sufficient and identify what circumstances might make you feel like your life is not worth living.

Do Not Resuscitate and Do Not Intubate Orders

You don’t need to have an advance directive or living will to have do not resuscitate (DNR) and do not intubate (DNI) orders. To establish DNR or DNI orders, tell your doctor about your preferences. He or she will write the orders and put them in your medical record.

Even if you already have a living will that includes your preferences regarding resuscitation and intubation, it is still a good idea to establish DNR or DNI orders each time you are admitted to a new hospital or health care facility.

Canada’s Medical Assistance in Dying

It is important to note that currently Canada’s Medical Assistance in Dying (MAID) legislation does not allow, for example, someone with a living will to request a medically assisted death on behalf of another nor does it allow a patient to authorize a request for a medically assisted death in advance. The MAID legislation also prohibits a medically assisted death if the patient loses the capacity to give informed consent before the procedure is administered.

Your Living Will After Death

Any authority granted by a living will ends when the person who made the document dies, with the single exception that some living wills or powers of attorney give healthcare agents the power to make decisions about organ donation or autopsy. But because those decisions must be made very soon after death, the authority is not long-lasting.

Again, this is in sharp contrast to a regular “last will and testament,” which has no effect when the will-maker is alive but becomes legally binding at death.

Safeguarding Your Living Will

You should give a copy of your living will to your primary doctor and should provide copies to other physicians who perform medical procedures on you.

You could also give copies to close family members who you trust. If you think a family member will not honor your end-of-life wishes, you might not want to give them a copy of your living will.

What is a Last Will?

A last will and testament is a legal document that details your instructions for how to distribute your property after your death. You can also name the person responsible for managing and distributing your property, often called your executor. 

During the probate process, a court will review your will to ensure it is valid, hear any challenges to the will, and make certain the executor administers the estate in accordance with the will. Unless your instructions violate the law or cannot be fulfilled, a probate court will honor the terms of your last will and testament.

If you have minor children, you also can use it to name who you wish to be their legal guardian. Usually, courts will honor your choice. However, courts will not appoint your designated guardian if it is not in the best interest of your children. For example, if your preferred guardian ends up incapacitated or incarcerated, a judge will choose someone else, likely one of your family members or close friends.

Dying without a valid will is called “intestacy.” If you did not create a last will and testament, your province’s intestacy laws will determine how your property will be distributed. These detailed laws give preference to children of the deceased, followed by close relatives.

How a Last Will Works

A last will only becomes effective after the death of the person writing the will. In the will, the will-maker (also called the testator) names an executor of the estate as the person who will administer, or carry out, the will’s provisions.

The executor is responsible for gathering all the estate’s property, keeping accounting records, and paying any taxes or outstanding debts of the estate. After all of that is taken care of, the executor can commence with distributing the deceased’s property to the beneficiaries as provided for in the last will.

A last will can also be changed or revoked any time prior to the testator’s death.

Storing Your Validly Formed Last Will

It is best to keep the original last will and testament in a safe place that is known to your executor and can easily be accessed when the time comes.

Unlike living wills, only the original last will and testament is legally binding in most jurisdictions, and it must be properly signed by you (the testator) and your witnesses. Copies of a last will and testament usually are not enforceable. Provincial law may allow courts to accept a trustworthy copy if the original cannot be located.

It is not a good idea to use a safe deposit box to store your will. Bank rules for accessing a safe deposit box can make it difficult to obtain the will when the owner is deceased.

Living Will vs. Last Will: Which One Do You Need?

As you can tell from above, the main difference between living wills and last wills is their function. A living will takes effect while you’re still alive, whereas a last will takes effect after you die. Furthermore, a living will ensures you receive the medical care you desire, and a last will ensures your estate is handled accordingly.

Since a living will and last will both cover vulnerable times in you and your family’s life and function differently, you’re safest when you have both. They preserve and enforce your wishes when you no longer can.

With both in place, your loved ones won’t have to make snap decisions in high-stress situations or face unnecessary legal fees to figure out what you wanted. Instead, you can lay it all out for them. If you think a living will or a last will are right for you, consider some of the packages at Legal Wills to help get the process started.

Estate Planning is For Everyone

Last wills and living wills should be considered by everyone. Both can provide you and your loved ones the peace of mind that your wishes will be followed—in the case of a last will, after your death, and with a living will, before. Practically, a last will can also make the probate process go more smoothly.

The Time is Now

Creating these documents when you’re healthy allows you to consider your options carefully without immediate health concerns weighing on you. Moreover, you can also discuss your choices with your loved ones ahead of time so they won’t have to make snap decisions in high-stress situations or face unnecessary legal fees to figure out what you wanted.

If you are undergoing surgery or are critically or terminally ill, a living will is essential, and a last will is certainly recommended.

Quite simply, the best time to prepare these documents is now.

Moving to Another Province: Do You Need to Rewrite Your Will?

Moving is a big process, with a lot of moving parts. Here’s why rewriting your will shouldn’t be missed on your to-do list when you move to a different province in Canada.

It is easy to think that since Canada has a federal legal system, your will would be valid everywhere. However, this is not typically the case. Even though all provinces are subject to federal Canadian law, every province and territory in Canada has their own separate estate laws provinces, and your will may not comply with the rules of your new province of residence. Therefore, whenever you relocate to a different province in Canada, it is advisable to review your will and make any necessary changes or prepare a new one.

What to Do When Moving Provinces

If you are moving provinces or have since you last updated your will, it could be time to make some changes to your will. Using an online service like LegalWills, you can update your address in your profile and any provisions that might have been valid in your old Province of residence but would be invalid in the new one will automatically be adjusted once you download your revised will. This way, you can have peace of mind that your estate will be distributed according to your wishes when you pass away. 

Keep in mind that it’s extremely unlikely that you will have to write an entirely new will. Most often, only a few changes will be required, if any. However, to avoid any legal issues, it is still essential to ensure that your existing will is valid in your new province of residence. 

For instance, if you prepare your will in Ontario, but later move to Alberta, the will from Ontario would apply in Alberta after your death (assuming a new one isn’t written), but it could be challenged and rejected by Alberta laws. Even if your will was valid in Ontario, if your dispositions don’t comply with the estate laws of Alberta, you risk having your will varied or even found invalid after your death. This would mean that you die intestate (without a valid will) and your estate may not be distributed according to your wishes if estate litigation arises. Often when this happens, the testator has no idea that their will is invalid in their new province. In fact, many people are unaware of this risk when they relocate to another province. 

Another issue to consider after moving to a new province is who you have appointed as the executor of your will. If your executor does not live near your residence, it can create difficulties for them during the process of administering your estate. If you moved to British Columbia from Nova Scotia, for example, it will be extremely difficult for an executor in Nova Scotia to administer your estate across the country in British Columbia. This also means that it may take longer for the beneficiaries of your estate to receive their inheritance. Estate administration encompasses a handful of different tasks, some of which require the executor to be physically present. Therefore, it is advisable to select an executor who lives in the same province as you. For this reason, you should always consider whether or not your executor should be changed after moving to a new province.

Moving, Temporarily

A key concept to understand in estate law is that of a “domicile” – the place where your permanent residence is. Your domicile determines which jurisdictions estate laws will govern your will. When we talk about “moving to another province” in this blog we are referring to someone who is relocating with the intention of making the new province their permanent residence. This means that the old province’s estate laws will be irrelevant to the administration of the person’s estate. When you pass away, your domicile is where your will is to be executed.

For example, if someone moves to Alberta, with the intention of staying there for only a few years to work before returning to Ontario, they wouldn’t need to update their will. This person’s domicile will remain Ontario and their will would be executed in Ontario, even if they are living outside of the province temporarily. 

When Others Named in Your Will Relocate

Beneficiary Address Change

You do not need to update your will every time a beneficiary changes address. What matters is it is abundantly clear who your beneficiary is, for example, my son, John Doe from Toronto, Ontario. Nobody else can claim to be that person. The other reason why an address would be included in a Will is to help your Executor to track down the beneficiary to give them their inheritance. It is much more efficient to maintain a list of people and contact information as a separate document, stored with your Will.

Why It May Matter If a Witness to a Will Relocates

The witnesses are crucial for establishing the will’s authenticity and addressing any arguments that may emerge over the will’s validity. If the witnesses have relocated, identifying and communicating with them may be difficult, particularly if they have not provided a forwarding address or contact information.

It is important to remember that the witnesses to a will are not responsible for the will’s contents or the distribution of the estate’s assets; thus, it is not always essential to contact them. However, if the will is contested in court by an interested person, the witnesses may be invited to testify that the will was properly executed and witnessed and that, at the time of signing, the will-maker (testator) was of sound mind and not under coercion.

The absence of a witness or the inability to locate one does not necessarily render the will void, but it might make the probate process more challenging in the event of disagreements.

As this can cause issues, you may want to take action today – by asking your witnesses to swear an affidavit confirming they were both present when the will was signed. We offer a free affidavit of execution form as part of our service at Legal Wills to give you more peace of mind.

Some Unintended Consequences of Relocation

Is Your Guardian Now in Another Jurisdiction?

If the guardian you appointed in your will lives on the other side of the country, it’s likely your child will be moving. Guardians are seldom in a position where they can move to your child’s location. While your appointment remains valid even if you relocate, it may be worthwhile to determine if this guardian remains your first choice. To answer this question, you should ask yourself where you want your child to be raised.

If the distance is significant, you should consider updating your will to name another guardian or naming an interim guardian who can accept your child into their home immediately, while moving arrangements are made.

What About My Other Estate Planning Documents?

Remember that your financial power of attorney and living will must be accepted by relevant institutions if they are to hold any value. This can be challenging if the institutions in your new province of residence do not accept documents written under estate laws of another jurisdiction. For example, for your power of attorney, if your bank is in Quebec where you are now residing, and your power of attorney is written under the laws of British Columbia, it is possible that your bank in Quebec would not accept your power of attorney. Likewise, living wills are different for each province, so it’s worth updating the document if you move to another province to ensure that if you are hospitalized, you have a document that is most likely to be accepted by your local hospital.

If you’re planning to move to another province, we would recommend that you review your documents to be sure that your estate will be distributed exactly as you’re intending and that you wishes are respected. 

Estate Planning When Expecting: A Guide for New Parents

Adding a child to the family—whether that be from having a baby, adopting a child, or gaining a stepchild—is an incredibly exciting time in your life. There’s so much to think about. Scheduling birthing classes, planning the new nursery, picking out the right car seat, baby-proofing the house, and choosing your baby’s health care provider are just a few of the things on your mind. One important item that might not be on your list but should be is that new parents need an estate plan.

We understand that the desire to protect your child from harm is immense. The problem is that life is inherently unpredictable. You can never truly know what unexpected events might occur that will affect your child in life. It’s not something anyone wants to think about, but wouldn’t it be best to put a plan in place just in case? Estate planning is about protecting the people you love and doing the best you can to make sure they will be taken care of, no matter what happens or when it happens.

Do the people closest to you know what to do if something happens to you?

There’s no point in having an outdated Will, or worse, no Will at all. Because let’s face it: children pretty much change everything, and if the worst should happen to you and your partner, you want to make sure your children’s future is secure. By creating a Will now, you can help you make sure your child is cared for in the event that you pass away unexpectedly—meaning your child has a legal guardian and sufficient funds—and that your estate passes on to the right person.

Estate planning is at least as important as car seats and bike helmets for the safety of your children. You do not want to put off creating a Will, only to have it be too late due to an unexpected tragic accident. 

Here are some important reasons new parents need an estate plan:

Protecting Your New Family

Who Will Take Care of Your Child After You Are Gone?

When you’re pregnant, the last thing you want to think about is the idea that you won’t be around to raise your child, but it’s important to consider what would happen to your child should the unthinkable happen.

Specifically, if something happens to you and your spouse/partner, who will raise your child? When creating your Will with your child in mind, it is important to begin considering who you want to retain guardianship of your child to ensure that your child will always be taken care of by the people you want, in the way you want, no matter what happens.

The best way to guarantee that your child is raised by someone who shares your values or beliefs and understands what you would want for your child is to name a specific person as guardian in your Will. Spend the time during your pregnancy thinking about who you’d want to raise your child if you’re unable, then ask that person if they’d be comfortable accepting the position. We understand that it can be a daunting and emotional conversation, but deciding on a guardian for your child is one of the most important tasks you’ll ever do. There are a lot of things to consider, for example:

  • Does the location of the potential guardian allow your child to stay close or at least connected to their family, friends, school and activities or would your child have to make major changes in those areas?
  • Will the lifestyle of this person make it possible for them to parent your child the way you want?
  • Does the guardian have the physical ability and energy to care for your child?
  • Does the guardian have the ability to emotionally support your child through an extremely difficult time?  
  • Do the religious and moral beliefs and political leanings of the guardian line up with those of your family?
  • Do the age and health of the person make it feasible for them to parent your child? (Tip: elderly parents may not be the ideal choice)
  • Does the potential guardian have a parenting style you believe would work for your child? Are you comfortable with their views on education and discipline?
  • Is the potential guardian someone with whom your child already feels comfortable?
  • If the potential guardian has other children, how would your child fit in?
  • If the person is married, are you comfortable with their spouse also raising your child?
  • Does the guardian have any legal reasons why they can’t take on your child?

Once you’ve determined who you want to be the guardian and they’ve accepted the position, you must legally document your wishes. We cannot stress enough how critically important it is for expecting parents to designate guardians in their Will.

Parents who delay naming a guardian or choosing an executor usually do so because they are deadlocked over the decision—they cannot agree on that “perfect” choice. Get comfortable with the fact that there is no perfect choice. You can always amend your choice if you change your mind. However, if you don’t choose a guardian, and you pass away or are unable to care for your child, the court will appoint a guardian for you and the choice could be someone who you would never want to raise your child. Oftentimes, they’ll start by considering family members, but do you really want a judge to determine who will care for your new baby or appoint someone that you disapprove of? This can cause your child additional trauma when they’re already going through a trying time.

It is important to remember that even if you already have children with potential guardians named, you still need to name a guardian for your new child.

Naming Beneficiaries: Is Your Child Financially Secure?

Many parents of minor children become confused as to how to leave assets to their children in a Will—after all, it’s not like a toddler can exactly be a homeowner. The best option is for the money and assets to be put in a trust for the benefit of your minor child. You name your child as the beneficiary and name a “guardian of the estate”, also known as a trustee, who will distribute and manage the trust. This option gives you more control over how much and when your child receives portions of the assets. For example, you could decide that once your child is a young adult, you want to give a certain percentage of assets to them at specific ages or when they meet certain milestones such as a college graduation or marriage.

If your stepchildren or adopted children are a bit older, you may want to start thinking about what items in your home mean the most to each of your children and consider leaving that item to them in your Will. For example, is there a specific necklace that one of your children has become attached to and hopes to one day inherit? It may be important to you to make sure they receive that item when you pass away, and the best way to ensure this is to put it in your Will. No matter how big or small your estate, naming beneficiaries for assets can eliminate pain, confusion and grief. 

Planning for an Accident or Illness

Who would pay the bills if you become unable to make financial decisions, even for a short period of time? By creating a financial power of attorney, you’ll name someone who can act on your behalf in regard to your financial or legal matters. This way, if you become incapacitated your rent or mortgage could still be paid and other regular expenses for caring for your child could also be covered.

Before an unforeseen situation presents itself, make sure your estate plan includes an updated healthcare proxy, also referred to as a living will or representation agreement. A healthcare proxy outlines how you want your family to proceed should an emergency take place and who would make medical decisions for you if you were unable to make those choices for yourself. If a medical emergency does happen, having your wishes documented will make an already high-stress situation easier to manage. This gives you peace of mind that you’ll receive necessary care and prevents potential conflict among family members that could be stressful to your child.

How Do You Provide for Unborn Children? What if Another Child is Born After Your Establish Your Estate Plan?

In terms of how an estate plan can provide for unborn or “after-born” children, there are a few drafting techniques that can address this issue.  For example, your Will would typically refer to your current children by name and their date of birth. However, when making a Will it is not necessary to specifically name the people whom you would like to inherit your estate. For example, your Will can be drafted in such a way so as to make provision for groups of persons to inherit your estate in the event that you die.

In the section or article of your Will that provides how your estate and assets will be divided, you could simply indicate that your estate and assets will be divided into separate and equal shares for each of “my surviving children”. That would mean that whatever children you have at the time of your death—including any children born to you, or adopted by you, after the date you sign your Will—would receive a share of your estate and thus the Will would work as you intend, even if you did not amend it after having a new child.

When including future beneficiaries in a Will it is important that their identity is clear. The description “my surviving children” is sufficiently clear to be understood who is intended to benefit from a Will. Descriptions which are vague or unclear like “my favourite children” should be avoided as a bequest made to such a group of persons will probably be deemed void by the court.

Estate planning may be difficult to think about, but it is an essential step for every new parent. Above all, it is about ensuring that your child is cared for, your wishes are honored, and your legacy is preserved, no matter what the future holds.

We understand the unique challenges and concerns that come with parenthood, and we’re here to ensure that your estate plan reflects your deepest wishes and aspirations for your loved ones. By using an online estate planning tool like Legal Wills, you can create digital estate planning documents entirely online and make amendments to your existing estate plan as your family changes. This can help ease your worries with the certainty that you have a comprehensive plan in place even if something unexpected happens up the road.

All about Trusts – how to include a Trust in your Will

There are many different varieties of Trust, and this can become confusing to anybody not familiar with the relationship between Trusts and Wills. In this article we will give an overview of Trusts, what they mean, how they work, and which types of trusts can be incorporated into your Will. At LegalWills.ca we support a number of different types of trusts, but certainly not all of them. It is also important to be certain when reading about trusts that you are reading Canadian material. Resources from the United States are very different, and much of the US information is not applicable to Canadians with Canadian assets.

Trusts
Credit: 123rf

What exactly is a Trust?

A trust is made up of three components. There is a “Grantor” (or “Settlor” or “Trustor”) who describes the parameters of the trust. There is a “Trustee” who manages the trust once it is set up, and then there is a “Beneficiary” of the trust – the person who benefits from the trust being in place. The key point is that by making the Trustee manage the contents of the trust on behalf of the beneficiary, there is more control over the contents of the trust. The beneficiary does not control the trust themselves.

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A Government of Canada Will Kit – Does it exist?

Every Canadian adult should have a Will in place. It is a document that should be written as you turn 18 or 19, and should be updated throughout your life as your circumstances change. If we know that everybody should have a Will, it’s a reasonable question: is there a Government of Canada Will Kit that is made available to every Canadian? And if so, how do I get one?

The short answer is: “No, there is no Government of Canada Will kit”. This article explains why there isn’t, and what other options may be available to you.

Government of Canada Will Kit
Credit: 123rf

What is a Will kit?

To understand a Will kit, you have to understand what constitutes a legal Last Will and Testament. The requirements for a legal Will are that it must be in writing, on paper, and signed in the presence of two witnesses. There is no requirement to write a Will with a lawyer, or to have it stamped or registered. It simply needs to be a piece of paper that clearly states that the document is your Last Will and Testament. Ideally, it should include an Executor appointment, but at a minimum it should explain who will be receiving what parts of your “estate” (all of your assets, possessions, and financial assets).

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How can you set Executor fees?

At LegalWills.ca we have made a decision to not allow you to set Executor fees in your Will. There is a good reason for this, and it does require some understanding of Executor fees and how they are calculated.

What are Executor Fees?

Within your Will you name an Executor. This person has the responsibility to gather your assets, secure them, and then distribute your assets to the beneficiaries according to the instructions in your Will. Together with these broad tasks, the Executor also has to arrange your funeral, file your final year taxes, apply to probate, and work with every business that you have interacted with to close down your accounts. In addition, there is now the concept of a Digital Executor. This person is responsible for working with all of your online accounts and digital assets to make sure that they are either closed down, memorialized, or transferred to a beneficiary.

It is a big task that can take many hours of work, over weeks and months, and even occasionally years. It is therefore only reasonable that an Executor should receive some compensation for all of this work that must be done to administer your estate.

Setting Executor fees in your Will
Credit: 123rf

What are the different types of Executor?

If you have a Will, then your Executor is appointed by you, in your Will. You can name a single person to take on the role or “joint Executors”. Within the Will you usually also name at least one backup or “alternate Executor”. Most of the people who prepare their Will at LegalWills.ca appoint a friend or family member as their Executor. There is absolutely no problem with your chosen Executor being a beneficiary.

In fact, it is very common for the Executor to be the main beneficiary, particularly when this person is your spouse. It can make things go quite smoothly when your spouse is transferring assets to their own name, when they are named as Executor of your Will. It is also common to then name children as a backup Executor (sometimes appointed as joint alternate Executors). Not all services allow joint Executors, but at LegalWills.ca you can name up to three first choice joint Executors, and up to three alternates who can either step into the role one by one, or who can work jointly when the first choice is unable or unwilling to serve.

Appointing an alternate Executor at LegalWills.ca
Naming an Alternate Executor at LegalWills.ca

When naming a friend or family member as an Executor, they must be an adult in your Province, but there are no other particular qualifications. They can have a criminal record, and they can have filed for bankruptcy. Just make sure that you are choosing an appropriate person.

Another option for your Executor is a professional Executor. This can be a bank, law firm, or trust company. Every major bank offers Executor fees, not all lawyers do, but some lawyers specialize in this part of the process and may even prepare a Will for a very low fee if they can be named as Executor. The catch with this is that some professional Executors set their own fees that are over and above the Executor fees set by the courts.

How are Executor fees calculated?

Executor fees are generally established on a Provincial level by the courts. They are calculated as a percentage of the estate according to a range based on the “size and complexity” of the estate. Keep in mind that these fees are over and above any costs that may be incurred through the process of estate administration.

In Ontario, Executor fees are usually calculated as 2.5% of all assets gathered, plus 2.5% of all assets disbursed to beneficiaries. In other words about 5 percent of the estate.

In BC, the level of Executor compensation is a little more vague, but is “up to” five percent depending on a variety of factors including:

  • the magnitude of the estate;
  • the care and responsibility involved;
  • the time occupied;
  • the skill and ability displayed; and
  • the success achieved in the final results.

In Alberta, the Executor compensation rates are subject to a more complicated calculation. Firstly, a calculation is made based on the size of the estate:

On the first $250,000.00 of capital: 3% – 5%
On the next $250,000.00 of capital: 2% – 4%
On the balance: 0.5% – 3%

There are further Executor fees based on revenues coming into the estate while the estate is being managed, as well as additional fees based on the assets being managed. So in general, it is a range that the Executor must pick from, and the level of compensation must then be validated by the courts.

Can you set your own level of Executor fees?

The fees quoted above are usually applicable only if the Will “is silent regarding Executor compensation”. In other words, you are legally permitted to set your own level of Executor compensation in your Will.

Of course, this will likely only happen if you have named a friend or family member as the Executor. If you name Royal Bank of Canada (RBC Royal Trust) as the Executor in your Will, they will likely require certain clauses to be inserted into the Will. You will not be able to name a professional Executor and set your own fees. Often, the fees charged by professional Executors may include additional administrative fees over and above the court approved levels of compensation.

Why doesn’t LegalWills.ca allow users to set Executor compensation?

In general the courts establish the level of Executor compensation based on the size and complexity of the estate. You have absolutely no idea what the size and complexity of your own estate will be.

You may feel that today, you have a good sense of the size of your estate, but keep in mind that your Will is not coming into effect today. It is some time in the hopefully distant future. You also have no idea how complicated your estate administration will be.

Supposing you are hit by a bus, and the bus company are held liable. But the bus company is holding off on paying any settlement. Your estate is going to get both larger in size, and significantly more complicated. There may be claims made against your estate that you are currently unaware of, because usually you have no idea how you are going to die.

You want to avoid a situation where you have stated in your Will that your Executor will receive $10,000 for their work, and your Executor realizes that this is going to be much more work than $10,000 worth. So they simply refuse to take on the role. You could end up with a situation where nobody wants the job because the level of compensation is too low for the work involved, particularly if the Will comes into effect 30 years from now when $10,000 is worth $1,000 in today’s money!

Can an Executor choose not to receive fees?

The flip side to this is naming a friend or family member who works through the Executor tasks and simply chooses not to be compensated. This is actually quite common, and in many countries, expected. Some family members may feel that it is unreasonable for the Executor to receive 5% of the value of a home simply for selling it through a real estate agent (who also receives a percentage of the home). In this case, the Executor will not need to do much work at all to earn $100,000 as a percentage of the sale of a home in downtown Toronto or Vancouver.

Can you leave a bequest to an Executor?

The Executor of your Will can be a beneficiary of the Will. This is very common when a spouse is named as both the Executor of the Will and also the main beneficiary. There are pros and cons to naming your spouse as the Executor of your Will, and we have covered this in a separate post.

However, don’t muddle the two. If you have left $10,000 to your brother, and also appointed your brother as the Executor, you should not assume that this bequest is in lieu of the Executor compensation. The two things should be kept quite separate. Your brother has every right to choose not to serve as Executor, but this should not mean forgoing any bequest given to them in the Will.

A Guide to Modern Wills: The Digital Will, Electronic Wills, and Online Wills

The law pertaining to Wills has been in place for almost 200 years. Over that time, very little has changed in the requirements to create a legal Last Will and Testament. The law has always stated that a Will must be written on paper and signed in ink in the presence of two witnesses, who must also sign the document in ink in the presence of each other. But over the last 20 years we have seen the emergence of online Will services, Digital Wills, and Electronic Wills. The definitions of these modern Wills have been evolving, and cause a great deal of confusion. In this article we would like to explain the differences between these documents.

Modern Wills
Credit: 123rf

Summary

An Online Will

A document written by an online Will writing service, but then downloaded and printed to be signed in the presence of two witnesses. It’s a Will writing service offered online. There isn’t really such a thing as an Online Will, other than the Electronic Will described below.

A Digital Will

A document that describes the handling of your digital assets, including those of financial value and those of sentimental value. These can range from social media accounts to cryptocurrencies. This is described outside of your traditional Last Will and Testament, and usually appoints somebody to manage this activity (i.e. your “Digital Executor”).

An Electronic Will

A document that is signed electronically by yourself and by your two witnesses. The signing is usually completed remotely via video link, and the document can then be stored electronically in the cloud. At the time of writing, British Columbia is the only Province that legally accepts an electronically signed and stored Will.

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How LegalWills.ca created the first electronically signed Will in Canada.

On December 1st, 2021, new laws came into effect in British Columbia that allowed BC residents to create an “electronic Will” – a document signed and stored entirely online. After the emergence of the COVID-19 pandemic, most Canadian Provinces allowed remote witnessing of Wills – meaning that your witnesses could watch you sign the document over a video link. But this law still required the physical document to be mailed to each participant, to be signed in turn. The amendment to the BC Wills, Estates and Succession Act, through legislation called Bill 21, allowed, for the first time, a Will to be signed electronically and stored digitally.

LegalWills.ca has been working with a Canadian company, Syngrafii, for a number of months to pull together a truly unique solution to take advantage of these law changes. On December 1st, at 12:01am, Royce Burningham became the first Canadian in history to electronically sign his Will.

How do we know that this was the first electronically signed Will?

There have certainly been other claims to this title, but fortunately, the LegalWills.ca solution comes with an automatic activity trace called a MasterFile™. This is automatically uploaded into the account holder’s Vault within LegalWills.ca. Royce was kind enough to share his MasterFile™ with us.

First completed electronically signed Will at 4 minutes past midnight Pacific Time, December 1st, 2021

The complete MasterFile™ is 23 pages long and provides a detail of every action taken on the video call.

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A short explainer on electronically signing a Will in British Columbia

For the last 200 years, the law that describes how to write a Will has barely changed. You have been required to write a Will on a piece of paper and sign it in ink in the presence of two witnesses.

In 2020 because of COVID, some laws changed to allow witnesses to be “virtually” present.

However, the Will would still need to be mailed to each witness to be signed in ink.

2021 has seen the introduction of e-signing and digital Wills in some jurisdictions, and Bill 21 in British Columbia will make BC the first Canadian Province to allow a Will to be electronically signed and digitally stored.

LegalWills.ca has teamed up with the Canadian company Syngrafii to create the most complete electronic Will solution available to Canadians.

If you are a resident in BC, you can choose the option to e-sign your Will. You can invite your witnesses to a scheduled Video Signing Room. When you gather, you will be guided through each of the places to sign in the document.

LegalWills.ca then allows you to store your signed document in your Digital Vault together with an audit trail called a “Masterfile”.

You can then set your Executor up as a “keyholder”, to access the signed Last Will and Testament as well as the Masterfile, which can be printed and submitted to the probate courts in BC.

The partnership between LegalWills.ca and Syngrafii, together with the Digital Vault and Keyholder solution, makes this the perfect tool for creating and storing an electronically signed Will under the new Digital Will laws in BC.

Electronically signing a Digital Will with LegalWills.ca

At LegalWills.ca we have always felt that technology could do far more for Will writing and estate planning than the law allowed. The legal requirements for writing a Will hadn’t fundamentally changed for nearly two centuries. A Will had to be written on a piece of paper, then signed in ink in the physical presence of two adult witnesses, and then stored in a filing cabinet somewhere.

This was, of course, problematic. Countless Wills were left undiscovered, or even accidentally lost in a house fire or natural disaster. The requirement to be in the physical presence of two witnesses became a significant barrier during the COVID-19 pandemic.

Importantly, these “old fashioned” requirements did nothing more to protect the rights of the Will writer. Wills could just go missing or be fraudulently signed by unscrupulous family members. It was not uncommon to see elderly parents sign a document under suspicious circumstances, resulting in family members challenging each other through the court system.

2020 was a significant year for estate planning because, for the first time, the law that described the execution requirements was re-written for COVID-19. The witnesses were no longer required to be physically present, but they could witness the signing through a video link. However, the paper document would still have to be couriered around to each witness for a physical signature.

In British Columbia, 2021 is a major watershed moment in Will writing law because of Bill 21. This Bill, for the first time, allows not only remote witnessing, but also electronic signing and storage of Wills.

It’s worth noting that there is some inconsistency with terminology. The BC law refers to “Electronic Wills” and many people are using the term “Digital Wills” to refer to a Will that includes Digital Assets. At LegalWills.ca we feel that using the term Digital Wills to refer to digital assets is confusing, so in this article we will refer to a document that is electronically signed and electronically stored as both Digital Wills and Electronic Wills.

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How to Write a Will in Ontario

There are essentially three approaches to writing a Will in Ontario.

  1. You can write your own Will starting with a blank sheet of paper or a blank form Will kit
  2. You can prepare your Will with a professional lawyer
  3. You can use Will writing software like the service at LegalWills.ca

Background to Ontario Law

In Ontario, a Will must comply with the Ontario Succession Law Reform Act of 1990. The law states that:

  • A Will is only valid if it is in writing (video Wills, audio recordings, or verbal promises are not legally accepted)
  • At the end of the document it must be signed by the “testator” (person for whom the Will is made) and also signed by two witnesses.
  • The testator may make a valid will completely in their own handwriting and signature, without the presence, attestation, or signature of a witness (this is a “holographic Will”).

There are other interesting clauses within the Succession Law Reform Act, including the minimum age, and special clauses for active military service members. However, the clauses we have highlighted are the most pertinent to the discussion of how to make a legal Will in Ontario.

Writing a Will in Ontario
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How Do I Change my Will if I Have an Existing Will?

A Last Will and Testament should not be written once in a lifetime. It should be written as soon as you become an adult, and should be updated throughout your life as your circumstances change.

There are a number of reasons for updating a Will. You may have had a change of financial circumstances or your personal situation may have changed. For example, you may have married or had children.

There may also have been a change of circumstances for somebody named in your Will. Perhaps your Executor has taken ill or your chosen guardians for your children have moved overseas.

You may also simply have had a change of heart. A charity may have become a significant part of your life and you want to recognize their work in your Will. Of course your relationships with your beneficiaries can also change.

What happens if you have a Will in place and want to change that Will?

There are Three Ways to Legally Change a Will

1: You can manually annotate your Will by writing on it. You would still need to at least initial the change, and also have two witnesses sign or initial next to that change. This is the least preferred approach to updating a Will because it is the most likely way to have a Will challenged. However, if the change is relatively benign, you could certainly consider this, E.g. for updating an address.

How not to change a Will
The Worst Way to Update a Will
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What to Do After You Have Written Your Will

Completing your Will is an important step, but it is not the only thing that needs to be done to get your affairs in order. Working through the suggestions below will not only help you organize all of your assets, but will also ensure a smooth process for your surviving loved ones.

Store Your Will and Be Sure That Your Executor Knows Where it is Stored

Once you have signed your Will in the presence of two witnesses, who in turn sign the document, it is a legal Last Will and Testament. At this point, you simply need to store the document in a place that is known and accessible to your Executor.

Your Executor is the only person who needs access to the Will. You do not need to share the document with your beneficiaries or family members. Some people simply give the Will to their Executor (or alternate Executor) for safe keeping in a sealed envelope.

There is no requirement to store the Will with any particular registry, and there is no requirement to register the document with any court or government department (this is done after you have died).

Your Will is a document that can be updated throughout your lifetime. Any time you make a change to your Will, you should sign the new document in the presence of witnesses. Ideally, any older Will should be destroyed, although this is not a requirement. Your most recently signed and dated Will is your “Last” Will and Testament and the only one that is active (assuming that it meets the legal requirements for a Will).

Storing your Will
Make sure that your Executor knows where your Will is stored.
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Understanding the words used in your Will

Are you thinking of writing a Will? Have you perhaps heard of terms like “Executor”, “Bequest”, “Living Will” and are now worried that the process of writing your Will may be beyond you? You may be wondering whether it is possible to write a Will without understanding all of these legal expressions. After all, that’s why many people hire a lawyer to prepare the document for them.

You may be surprised to learn that you really don’t need to understand any of these legal words in order to use a service like LegalWills.ca. However, the words may appear in your final Will, and in that context they will make sense to you. We also explain some of the key definitions when you are working through the service. But you may be interested to learn exactly what some of these words actually mean.

Perhaps you wrote your Will with a lawyer. You have had it witnessed and now it’s stored at your lawyer’s office but you still have no idea what it says. Don’t worry, this isn’t an uncommon situation. Many people go through the whole task of writing a Will and signing it when they don’t fully understand what it says.

Unfortunately in today’s legal world, estate attorneys don’t always have sufficient time to go over every detail and word of a Will. This is partly because their time costs money, but also because writing a Will is an everyday common practice to them. Therefore, they often neglect to go over the basics with their clients. An experienced and understanding estate attorney should always be willing to go over every detail of your Will and explain any confusing language so that you feel comfortable when signing it. However, the legal environment can be intimidating and attorneys may assume that you understand the legal terms when in fact you don’t.

Understanding legal words in the Will

At LegalWills.ca we almost fall into the same pattern ourselves when we talk to customers about the “Executor” and the “Beneficiaries”. We forget that some people may be hearing these words for the first time. They are words that are rarely, if ever, used outside of the context of writing a Will.

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More Will writing Myths

I recently happened upon a Facebook ad promoting an online Will writing service. There are a few different services in Canada, and because Facebook knows that I have an interest in Will writing, I seem to be targeted for every ad from all of our competitors. This particular ad has been running for many months, and garnered nearly 200 comments.

I feel a little sorry for this service provider though, because the comments are riddled with myths, misconceptions, or could we even go as far as to call it “fake news”. The comments section has a surprising level of misunderstanding. I thought it would be interesting to dissect some of these comments, and put the record straight.

The Holographic Will

“Half of it is handwritten and half is typed, which means courts will reject it as a holograph Will”.

The holographic Will causes so much confusion, but it’s really very simple. A Will must be signed in the presence of two witnesses to make it legal, but some provinces make an exception to this rule. Sometimes it is simply not possible to gather two witnesses (for example, if you are stuck under a rock), and you may need a Will in a hurry. So some provinces allow you to prepare a Will without witnesses if it is entirely written in your own handwriting. This is called a holographic Will.

Here’s the catch: not all provinces accept a non-witnessed holographic Will (notably British Columbia), so it makes sense to prepare a Will and sign it in the presence of two witnesses.

However, all provinces will accept a document that is signed in the presence of two witnesses whether it is all handwritten, all typed, or a mixture of the two.

So in answer to Jenn Hurst’s point, an online service is not helping you to prepare a holographic Will. If half of the document is typed, it is not a holographic Will, so it must be signed in the presence of two witnesses. A document that is signed in the presence of two witnesses will be accepted in all Canadian provinces, regardless of if it is typed, handwritten, or a mixture of the two.

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Trends in Canadian Will Writing – 2021 Will Survey

Five years ago, LegalWills.ca conducted a unique survey of Will Writing in Canada. We wanted to not only explore the number of Canadians with and without Wills, but also the number of people who had a Will, but felt it had not been kept up-to-date. We broke down these numbers by region, income, and age, and published the numbers on our blog.

In the five years since then, there have been a number of events that we have felt may have influenced these numbers, not the least of which has been the COVID-19 pandemic. As we reported at LegalWills.ca, and the article was picked up in the media, the pandemic caused a massive spike in Will writing.

In the last five years we have also seen a proliferation of new convenient Will writing tools from websites providing some of the services offered by LegalWills.ca. At least five service providers have popped up since our last survey, including Willfora, OM Company, Willowbee, Willful, and Epilogue Wills. The services range from “work in progress” to actually quite good, and range from “absolutely free” to $139 for a simple Will. All of the service providers have one thing in common: they are all claiming significant success in encouraging Canadians to write their Will by offering a convenient alternative to making an appointment with a lawyer. We have also seen companies like Axess Law appear on Canada’s fastest growing businesses with their budget Will writing service for $200. There have also been technical innovations from companies like Notice Connect offering the Canada Will Registry and NotaryPro.ca offering virtual witnessing and notarizing of Wills.

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Did COVID inspire more people to write their Will in 2020/2021?

At LegalWills.ca we have provided an online option for preparing estate planning documents since 2001. This gives our company a unique insight into industry trends and allows us to explore the triggers for writing a Will. But in the midst of the COVID-19 pandemic, the last 12 months has been a truly unique experience for us.

Will writing is traditionally one of those tasks that you just don’t get around to. The statistics bear this out, with our own survey showing that around two thirds of Canadian adults do not have their Will in place. Most of these people know that it’s important to write a Will, but it’s a task that is put off until next week, next month, or next year.

However, in 2020 and 2021, something very dramatic happened. LegalWills.ca saw an incredible spike in the number of people writing their Will. There was a lot happening around the world, but the obvious conclusion was that the COVID-19 pandemic nudged people to finally get their Will in place.

At LegalWills.ca we felt that the sudden surge in Will writing was fascinating, and we wanted to take a deep dive into the motivation for writing a Will. We are fortunate to have a large pool of customers who we can ask the simple question, “Why did you decide to write your Will?”

Why do people usually write their Will?

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What makes writing a Will in Québec unique?

Overview of Writing a Will in Québec

Une version française de cet article apparaît sous la version anglaise

Everybody has a legal right to prepare their Will. But there are a few different approaches to doing this.

Did you know that you could write your Will on the back of a napkin? It would be a perfectly legal document and if it’s all in your own handwriting, it is known as a holographic Will. In most Canadian provinces, this document doesn’t even need to be witnessed to be accepted by the courts. Québec allows you to prepare a holographic Will and accepts it as a legal document.

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Couple’s Will – Writing Wills as a couple in Canada.

Fifty-five percent of the people who use the Will writing service at LegalWills.ca describe themselves as married, while a further eleven percent are in a common-law relationship. In most cases, these people are preparing their Wills as a couple. In this post we want to break down exactly what is meant by a Couple’s Will, and the steps involved in creating Wills for two people when using the service at LegalWills.ca

Creating a couple's Will at LegalWills.ca
Couple creating their Will at LegalWills.ca

How can I prepare a Will in Canada?

Let us start by discussing the different ways to prepare a Last Will and Testament in Canada. It boils down to essentially three approaches:

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Why writing a Will is the first thing to do as a new parent

Guest post by Barry Choi: a personal finance and travel expert based in Toronto who makes frequent media appearances. His website moneywehave.com is one of Canada’s top resources for anything related to travel and money. Barry shares his thoughts on the importance of Writing Will as a new parent.

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In 2017, my wife and I welcomed our daughter to the world. I wish I could tell you everything went according to plan, but it took years to get pregnant. It’s not like something just clicked one day, we had to get help via IVF.

It was a daunting process with many appointments and tens of thousands of dollars spent. We researched the topic and spoke to various healthcare professionals and parents who also faced a similar ordeal. When she was finally born, we knew she was a miracle, so we wanted to ensure that we cherished every moment with her.

Writing a Will as a new parent
Credit: Pexels

Unfortunately, we made one significant mistake right away. We didn’t get our wills set up. It took close to a year before we got them done and admittedly, there was more than one occasion where I thought to myself, what if?

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