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FAQ Wills & Estates Law
What is a Will?
A Will is a legal document that controls how your estate will be dealt with after your death. Your Will appoints a person to manage your estate (the executor), directs who Will receive an inheritance from your estate (the beneficiaries), who Will look after your minor children (the guardian) and additional matters. A Will is only valid if it is signed in the presence of two witnesses in accordance with the technical requirements of provincial law (know as execution of your Will).
Do I need a Will? What happens if I die without a Will? What is intestacy?
Whether you need a Will or not depends on your circumstances. If you do not have any minor children and no assets of value in your name then you probably don't need a Will.
If you die without a valid Will then the laws of intestacy in your province govern how your estate will be managed. It will be uncertain who should manage your estate. If a suitable family member or friend does not step forward and apply for the job then the provincial Public Trustee will administer your estate. Your estate will be divided among your next of kin in accordance with provincial law. If you do not have any living relatives then your estate will be given to the provincial government. The guardianship of any minor children you have will be determined by your provincial Ministry of Children and Families.
When does a Will take effect? Can it be of assistance during my lifetime?
Your Will automatically takes effect upon your death. However, in order to use your Will to transfer assets such as a bank account or a house, the bank and land registries want to see that the Will has been approved by the probate court. Therefore, although the Will is in effect from the date of death, the executor will not be able to transfer assets until probated.
Your Will does not have any authority over you or your estate during your life time. If you want someone to manage your affairs while you are alive (if you are unavailable on a vacation or lose mental capacity) then you need to appoint them to do so using a Power of Attorney.
What happens to my Will if I get married?
Entering into a legal marriage may revoke your existing Will. If you get married after you make your Will you should either make a new Will or get legal advice on whether you old Will is still valid and appropriate for your needs.
What happens to my Will if I get separated/divorced?
Your Will is not revoked by separation or divorce. You need to get legal advice.
How do I change my Will in the future?
A document that amends a Will is called a Codicil. For a Codicil to effectively change your Will it needs to be signed with the same formality as your Will. You cannot change your Will by making handwritten changes and initialing them. If you try this, you will be creating huge problems for your executor.
It is safer and often easier to do a new Will to replace the old one then to try to change your Will. Signing a replacement Will also makes it cheaper and easier for your executor as there will only be one document to probate and one Will is easier to read than a Will with an Codicil amending it.
How do I sign my Will? Who can be a witness?
Your Will must be signed in accordance with the technicalities of the Wills Act. A valid Will must (a) be signed at the end by the testator (the person making the Will), (b) the testator must sign in the presence of two qualified witnesses present at the same time, and (c) each witnesses must also sign as witnesses in the presence of the testator.
Witnesses must be adults and not suffering any mental incapacity. Do not have any of the following people witness your Will:
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Your executor or alternate executor, |
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The guardian you have named or alternates, or |
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Any beneficiary, or spouse of a beneficiary. |
To be safe, have your Will witnessed by two mentally capable adults who are in no way related to you or your spouse, are not mentioned in your Will and are not possible beneficiaries.
Click here to review our Will Signing Instructions.
Can my spouse and I share a Will? Our wishes are the same?
No. You each need a separate Will. Trying to have one document act as the Will for both of you will cause major problems for your executor and may make it impossible to probate your Will.
Can I do a videotaped Will?
No. Only in the movies and on TV. Your Will must be in writing.
Where should I store my Will?
If you have a safety deposit box at a bank then store it there. Otherwise, store it in a safe place that will be easily accessible and let your executor and alternate executor know where it is. Give a copy of your Will to your executor and alternate executor in case the original is destroyed (it is possible to probate a copy if necessary but it may cause some problems). If you do not have a safety deposit box then you may want to purchase a mini fire resistant safe for storage of your important documents.
What is the Wills registry?
You can file a notice with the provincial Wills registry letting them know the date you made your Will and where the original is located. This is not required. If you do file a Wills notice then you need to make sure your executor and alternate can easily find your Will.
What does an executor do?
Your executor is responsible for all aspects of the management of your estate, including:
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Taking care of funeral and burial arrangements |
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Protecting your assets against damage or loss |
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Locating your Will and submitting it for probate |
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Paying your debts |
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Completing your tax returns and paying your taxes |
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Maintaining trusts for beneficiaries |
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Providing information to your family and beneficiaries |
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Distributing the balance of your estate to your beneficiaries |
Your executor should hire a lawyer and accountant to assist them.
Who can be an executor?
You can appoint any adult to be your executor. However, being the executor of an estate can be a complex, difficult job. Your executor is responsible for your funeral arrangements, obtaining probate of your Will, managing your assets until they are sold or given to your beneficiaries, paying your bills, preparing and submitting your taxes, distributing your estate as you have requested, maintaining trusts for you children and other minors, and dealing with the legal and accounting matters relating to your estate. Accordingly, your executor must be:
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Honest and trustworthy; |
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Capable of doing the job (your executor does not need to be an expert, they should hire a lawyer and accountant to assist them, but they should at least be someone you feel is doing a good job of managing their own affairs); and |
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Have the time and willingness to do the job. |
Another factor to consider is that it is convenient if your executor lives in the same city (or at least the same province as you). This factor should not overshadow the other three criteria above. You should choose someone who is trustworthy, capable and willing over someone who is not, even if they live on the other side of the country. It is also beneficial if your executor has a direct interest in your estate. If you choose one of your beneficiaries, they will have more incentive to get things done in a timely fashion.
Do executors get paid?
Executors are entitled to pay themselves compensation from your estate in accordance with the Trustee Act (typically a one time fee of about 2-3% of the value of your estate not to exceed 5% and an annual fee for maintaining ongoing trusts not to exceed 0.4%).
Does my executor have to pay my debts?
Executors are not personally liable for any debts of the estate, unless funds of the estate are diverted to other payments prior to paying debts or taxes.
What happens if I die with more debts than assets?
Your estate is insolvent if you have more debts than assets. Your executor has to liquidate the assets you do have and pay down your debts. Some of your creditors will not be paid in full. Your beneficiaries will not receive anything. Your reasonable funeral costs, the costs of probating your Will and your executors' fee will all be paid before payments are made to creditors.
What is probate court?
Probate court is a division of the court that deals with Wills and estates. To probate a Will, the executor must make an application to the probate court with the original Will and information about the deceased, the deceased's family and the deceased's assets and liabilities.
Obtaining probate of the Will is the normal procedure for dealing with estates where there is a Will.
Can my Will be challenged?
If you did not have mental capacity at the time you made your Will then it is not valid. Someone could challenge the validity of your Will for this reason. If there is any question about your mental capacity due to age or disease you need to see a lawyer in person to prepare your Will. The lawyer will be able to assess you ability to make a valid Will and provide evidence of your capacity if needed.
Do I have to leave my estate to my spouse and children? What is the Wills Variation Act/Dependants Relief Act?
If you have disinherited your spouse or one or more children then they can apply under provincial law (Wills Variation Act/Dependents Relief Act) to change the way your estate is distributed among beneficiaries. Whether they succeed in varying your Will depends on many factors including the size of your estate, any property passing outside of your estate (such as life insurance, joint property and RRSPs), any gifts you made to the applicant or beneficiaries during your lifetime, the financial needs of the applicant and the beneficiaries you have named instead and the history of the relationship between you and the applicant.
What happens if we all die together in a car accident?
You can make a contingent gift in your Will that will take effect if your main beneficiaries die before you, with you or before receiving their entire share.
What happens if a beneficiary dies before me?
If a beneficiary dies before you then their inheritance is given to the alternate beneficiary named in your Will or to the deceased person's estate if that is what you have directed in your Will.
Who will look after my children?
You can appoint a guardian in your Will to take care of your children while they are minors.
Who should I name as guardian?
The choice of guardian is a very personal decision. The person or couple you choose should share your beliefs in raising children. Above all, you need to consult with your intended guardians before you appoint them. You may want to name an alternate in case your first choice is not able to act.
At what age should my children receive their inheritance?
You should direct your trustee to hold your children's inheritance in trust until they are mature enough to handle the responsibility themselves. A large inheritance could cause difficulties for a 19 year old. Your executor will be able to use the money held in trust to assist your child and pay for your child's expenses. If you anticipate that there will be a large inheritance, you may consider having more than one release date (for example 50% at the age 21 and the rest at 25). We do not recommend holding money in trust past the age of 30.
What if I have more children?
A properly drafted Will includes wording to deal with additional children. If you want to leave everything in equal shares to your children if your spouse dies before you then your Will should be written to include any additional children you have after making your Will included in the distribution.
Do I need to name my assets and debts in my Will? They are going to change?
No. Your Will deals with everything your own. It is not necessary to list specific assets unless you want to gift them to specific beneficiaries.
What happens to my RRSPs when I die?
If you have named a beneficiary in your RRSP documentation then the assets in the RRSP are given directly to that named beneficiary by the bank or investment company. If you have not named a beneficiary, your beneficiary dies before you or you have named your estate as your beneficiary then the assets in your RRSP are distributed in accordance with your Will as an asset of your estate.
The value of your RRSP on the date of your death is included in your income when calculating your taxes for your final tax return. The beneficiaries receive the assets and can sell them tax free. There are two exceptions to this rule discussed below.
If your estate does not have enough money to pay the tax bill caused by the release of the assets from your RRSP to the named beneficiary then CCRA (Revenue Canada) can recover the tax directly from the money received by the beneficiary.
Your RRSP can be "rolled-over" to an RRSP for a spouse or dependant child. If a roll-over is done then your estate does not have to pay any taxes on the amount of your RRSP and your beneficiary pays tax when they withdrawn funds from the new RRSP. The tax is deferred.
What happens to my life insurance when I die?
If you have named a beneficiary in your life insurance documentation then the proceeds are given directly to that named beneficiary by the life insurance company. If you have not named a beneficiary, your beneficiary dies before you or you have named your estate as your beneficiary then the proceeds are distributed in accordance with your Will as an asset of your estate.
There are no taxes on the proceeds of life insurance policies (but if it become an asset of your estate then the provincial probate fee will apply - approximately 1%).
Should I name specific beneficiaries for my RRSP and life insurance policies or should I name my estate?
If you are leaving your estate, RRSPs and life insurance proceeds to your spouse then name him or her as the beneficiary of your life insurance and RRSPs.
If you do not have a spouse then you may want to consider naming your estate as the beneficiary of your life insurance and RRSPs. However, there are costs and benefits of doing this. The benefit of naming your estate is that the money will become part of your estate and will be distributed along with the other assets. Trusts for minors will apply. It will likely make your estate planning and the administration of your estate easier for your executor. Unfortunately the proceeds of the Life Insurance and RRSP will be subject to the provincial probate fee (approximately1%) and the assets will be subject to claims by creditors and claims under the Wills variation act (they would be immune from claims if you named the beneficiaries specifically - except CCRA's claim against the RRSP proceeds for unpaid taxes).
What happens to joint property when I die?
Things that you own jointly with your spouse or other person automatically transfer to the surviving joint owner when you die. They do not become part of your estate and are not controlled by your Will.
Are there any Death Taxes in Canada?
Not yet. There are currently no taxes on dying in Canada. However, all provinces charge probate fees for approving the validity of Wills (approximately 1% of the gross value of your estate) and there is a deemed disposition of property on death which can trigger capital gains taxes and income tax on RRSPs.
Do I need a lawyer?
It is possible to do a Will without using a lawyer. easyWILL and other Wills & estates lawyers have specialized training and experience to make sure your Will is properly drafted to meet your needs and provide you the peace of mind that your Will has been done correctly.
How do I make arrangements for organ donation?
You need to contact your provincial organ donor registry.
How do I specify my funeral wishes and burial instructions?
You should discuss them with your family and make your wishes know. You can make pre-arrangements with a funeral home. You can put your funeral wishes and burial instructions in your Will or in a letter of wishes.
What is a Living Will?
A Living Will is another name for a Health Care Directive. A Health Care Directive is a written statement to family and health care providers specifying a your wishes in the event that you are terminally ill with no chance of recovery.
What is Power of Attorney?
A Power of Attorney is a legal document where a person can appoint another (the attorney) to manage their affairs. An Enduring Power of Attorney remains valid even if the person giving it loses mental capacity. It can be used for a spouse, family member or trusted friend to help a person who has lost the ability to look after their own financial affairs. It must be signed before the person loses capacity.
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