Change is an inevitable aspect of life, so is death. Death is an occurrence that every individual will experience, although some people experience it earlier than others. In most cases, it can denote the passing on of a loved one and a celebration of life, while in others, it is an abrupt departure of a loved one.
Regardless of what the case might be, preparing well in advance how you want your lawyer to share your asset after your demise will go a long way in easing the affairs of your beneficiaries.
As we all know, death does not have a time and place, and no one tends to know when it will happen. So, making arrangements (Will, funeral, etc.) will help your loved ones know what to do after your demise.
This article will be reviewing what a Testament, also known as Last Will, is in Canada, what it entails, and how to write one.
Will/Testament in Canada
A Will/Testament is a legal document usually prepared by a lawyer. Generally, this document carries details of a person’s final wishes on distributing their assets to beneficiaries.
In addition, a testament outlines what is to become of a deceased person’s possessions. Conversely, it states whether or not the deceased will leave their possession to another person, a group, family or donate them to charity.
Also, you will find details on what is to become of dependents they are responsible for, such as custody of their children, pets, and management of accounts and financial interests.
Requirement for a Testament
A testament or Will allows you to instruct and decide how your assets, such as bank balances, property, assets, etc., will be shared after your demise. For business owners or investors, they can specify who will inherit their assets and when. Alternatively, you can decide to Will your assets to a charity, an institution, or an organization.
A Will gives the assurance that your executor will carry out your last wishes. Hence, the process of writing a Will requires that you identity beneficiaries of your assets and properties.
Also, a Will usually assigns an executor, a trusted individual whose job is to execute Will’s instructions and manage the affairs and wishes of the deceased person’s property. Conversely, if you have minors who are dependents, you can assign a legal guardian who will take care of them in case of untimely death.
A Will is considered valid once a mentally stable individual signs it. In addition, most provinces in Canada require that an average of two unrelated individuals aged 18 or over be a witness to signing a Will. Although most people employ the services of a lawyer or a law firm to help them facilitate the writing of a Will, however, it is not a compulsory prerequisite that makes a Will legal and binding.
Components of a Will/Testament
Although there are different types of will/testaments, there are some significant components that all Will have. Some of them include:
An executor is a person that will be in charge of ensuring that your wishes expressed in the Will are followed. The person can be your spouse, a lawyer, a family member, a close friend, an adult child. Conversely, you can appoint joint executors to ensure that your last wishes are followed to the latter.
Naming and appointing a guardian is crucial if you are a parent with minor(s) dependent. Appointing a guardian comes with the assurance that you have picked the best person(s) possible to take care of your dependents after your demise.
A Will/Testament gives a directive on how your assets or property will be allocated to your beneficiaries. Also, it allows you to make a conscious choice and decides who gets what from your estate.
Real property includes any building, structure, or home you possess at the time of your passing.
The final instructions detail funeral arrangements and your wishes for your remains. Also, in some cases, it might include instructions on any clause in sharing your property.
Types of Wills/Testaments
Wills vary per type and their effectiveness. Several types of Wills are legal and valid. So, the type you should settle for should depend on how significant your assets or estate is.
In our world today, digitalization has taken over almost all sectors; you can draft your Will online using an online Will maker. Nonetheless, below are the types of Wills available:
As the name connotes, it is a simple Will that allows you to detail your basic wishes without including any clause or conditions. With a simple Will, you can also appoint an executor and appoint a guardian for any minor children or dependents.
Testamentary Trust Wills
Also referred to as a Trust Under Will or a Will Trust, a testamentary trust will be a document stating how you want your assets to be distributed after your demise.
Although some Trusts are established while you are alive, however, when a testamentary trust is established, the trust remains inactive until your demise. In addition, Testamentary Trusts will is subject to validation and are often used when beneficiaries need a guardian for over an extended time.
A joint Will is a one-piece document used in cases where an individual wants their spouse to be the initial Beneficiary of their estate, with the final beneficiaries being their children after they both pass. Conversely, it is one Will for two persons.
However, it is crucial to note that a Joint Will becomes irreversible after the demise of one partner. Nonetheless, as long as both partners are alive, they can alter and make changes to the Will.
Deathbed Wills are usually problematic as it is drafted when an individual is close to death. The individual might often forget to mention some assets due to mental state when drafting the Will. Nonetheless, a deathbed Will is still valid and legal.
A holographic Will is uncommon because it is usually written and signed by hand. Usually, this type of Will is drafted as a result of extreme and unexpected life-threatening situations.
Nonetheless, a holographic Will is legal in most provinces in Canada. However, the court will only accept this type of Will if the Testator writes and signs it in his handwriting.
A Nuncupative Will is a spoken Will, and like every other type of Will, it is legal. However, for this Will to be binding, you must have several witnesses or have it written down after being spoken.
As the name connotes, an online Will is made using an online Will maker. And like other types of Wills, it offers protection and is legal. Online Will is a cost-effective way of drafting your Will compared to using the conventional Estate planning method or face-to-face with an attorney.
However, you must be careful while drafting your Will online. Ensure to read their terms and conditions carefully and confirm their legality and authority before deciding to use any online Will maker.
Creating a Will/Testament in Canada
Regardless of the type of Will you decide on, you must take some basic steps to ensure that everything is included when creating a Will. Below is a guide on how to create a Will:
It is crucial to take inventory of your assets ranging from your estates to personal effects and digital assets.
Yes, deciding on who you want to inherit you after your demise is very crucial. So, carefully decide what goes to who and when.
Choose an Executor
As mentioned above, an executor ensures that your wishes are granted. So, pick a person you trust and make them aware of your decision.
Select a Guardian
Like all other persons, a guardian is also vital as they will be in charge of any minor dependent on you before your demise.
Signature and Notarization
Once you have carefully detailed how you want your assets to be handled after your demise, ensure to sign and notarize the document to make it legal and binding.
Safeguard your Will
It is essential to keep your Will in a safe place. A fireproof safe is one of the best options available. However, you could keep it in a safe deposit box in any financial institution.
Update your Will
From time to time, it is advisable to update your Will. Recommendable, you could do so every 3 to 5 years or after significant life events such as;
- The birth of a child
- Marriage or divorce
- Death of anyone mentioned in the Will
- Change in ownership of any property mentioned in the Will
- Change of province or country
Average Cost of a Will/Testament
Generally, the average cost of a Will is as follows:
- A simple Will – CA$400
- Complex Will – CA$800 – CA$1,100
- A financial power of Attorney – CA$150 – CA$200
- A Living Will – CA$100 – CA$200
However, bear in that there might be other charges for components like Will Storage.
Consequences of Dying without a Will/Testament
When someone dies intestate – without a will/testament, the state becomes the executors of the person’s estate(if any). So, the state will decide how to share the property and get payment first without factoring in family situations.
However, a blood relative can lay a claim to the estate. Also, the court can decide guardianship based on its determination as to what is best for the children.
Nonetheless, if a court deems a will to be improperly drafted, it will be considered invalid. In this case, the estate settlement will be subject to the province’s intestate law. In most provinces, the provincial law divides a deceased person’s property amongst the surviving spouse and children (if any).
However, if unmarried or widowed persons, the court will share assets among any surviving children (if any) before any other relatives. But if there are no next of kin or cannot be located, all assets in the estate will become that of the state.
Nonetheless, if you die without a will/testament, the following will happen:
- For parents, the court will appoint a guardian for them if they are minor
- If you die intestate, the court will settle your estate and distribute all your assets
You cannot contest a Will if it is well-planned; however, if any legal reasons support the decision to contest the Will, it will be granted. Below are some legal reasons that could warrant that a Will be contested:
- There are concerns and proof that the Testator was mentally unstable at the time of signing.
- If the Testator was under the influence of alcohol or drugs when signing
- Suspicion of coercion, duress, fraud, or undue influence.
Summarily, every adult should have a Will. It could be plain and simple, something to relate your wishes upon demise. However, if you have savings, investment, property, or dependents, then you should take your time and carefully draft your Last Will/Testament.
In the absence of a Will, the court will share your Will per your provincial laws. Also, if you pass on without a Will, your spouse, children, parents, or close relatives will become the Beneficiaries of your estate.