When creating a will, people often have particular wishes for who they would like to receive certain assets. Whether it’s because the item has high financial or sentimental value, it provides peace of mind knowing who will be able to enjoy the possessions you’ve accumulated over your lifetime. In this article we’ll explain how to leave specific gifts in your will, why you should leave specific gifts, what you can and can’t leave as a specific gift and other important nuances.
What is a specific gift?
A specific gift is a particular item or amount of money that you leave to a beneficiary in your will. For example, leaving your gold watch to your sister, or leaving $1000 to your brother. A specific gift can be left to a person, charity, school or non-profit organization.
Why would I want to leave a specific gift?
There are many reasons why you would want to include a specific gift in your will. These might include:
- Having complete certainty over the fate of a particular asset. Specific gifts allow you to dictate who will end up with your art collection or favourite piece of jewelry.
- Ensuring your executor knows exactly how to distribute your assets. Knowing your wishes for particular items makes their role a lot easier.
- Supporting a charity, school or non-profit organization. You can leave an item of value or a set amount of money to help support a cause you care about.
- Passing on a family heirloom. You can ensure that an item with sentimental value will be passed down to the next generation.
What can I leave as a specific gift?
In a will, you can only leave property that you own by yourself. Some items commonly left as specific gifts include:
- Moveable possessions like a car, jewelry, furniture, electronics, clothing, etc.
- A business
- Money held in a specific bank account
- A home or real estate property
There are also assets that you can’t leave as gifts in your will. These may include:
- RRSPs, a pension plan, or life insurance (you name beneficiaries directly on the policies and they pass outside the will)
- Jointly owned property (passes by right of survivorship or designated beneficiary of assets, and passes outside the will)
- Jointly owned bank accounts (passes by right of survivorship)
- Property in a trust
How do I leave a specific gift?
To start, it’s a good idea to make a list of your assets so that you know what you own. This extra step will help you to plan specific gifts for beneficiaries and ensure you’re not forgetting about any important assets. Store this list along with your will to make your executor’s job easier when the time comes.
To list specific gifts in your will, it’s important to take care when describing the specific gift. In your description you should be concise but use enough detail so that the asset is easy for your executor to identify. Here are some examples to help guide you:
My black Yamaha grand piano
My beige West Elm sectional couch
My cottage at 123 Main Street in Kelowna
Any funds remaining in my TD chequing account
What if I sell or lose an asset that I’ve left as a specific gift?
If an asset as a gift to a beneficiary in your will is lost, sold, used up, destroyed or otherwise no longer owned by you, it’s a good idea to remove the gift from your will as soon as you can. If a gift remains in your will that you do not own at the time of death, it becomes an adeemed gift. This generally means that the gift fails and the named beneficiary won’t receive it. Even if the gift can be traced to other property, if the specific property is not found among the testator's assets after death, the gift is said to have adeemed. This is the case even where you acquire other property in which the property that was the subject matter of your will can be traced, subject to your will. For example, if your will says “I’m leaving my red Porsche to X” and you die with a white Porsche, then the gift adeems and your beneficiary won’t receive it.
It’s not always easy to determine whether a gift has adeemed and can lead to court delays and added expenses as surviving loved ones try to settle the estate. It’s best to ensure that all specific gifts left in your will are up-to-date to avoid causing any complications down the road.
What if a beneficiary of a specific gift predeceases me?
If you’ve left a specific gift in your will to a beneficiary that passes away, the gift to that beneficiary fails to take effect, or “lapses”. A lapsed specific gift will be added to your residual estate (your total estate minus specific gifts). If the lapsed gift is a portion (or all) of your residual estate, then it will be distributed according to your province’s intestate laws. Some people choose to name a substitute beneficiary to help prevent the possibility that a gift lapses.
In Ontario, anti-lapse legislation (section 31 of the Succession Law Reform Act) exists, which allows for a lapsed gift to go to the spouse or child of the deceased beneficiary. It’s important to note that this only applies in situations where the deceased beneficiary had a close relationship with the testator (for example, they were a child, grandchild or sibling of the testator). Other provinces have similar provisions that you can learn more about with online resources or speaking to an estate lawyer in that province.
By keeping your will up-to-date and removing any beneficiaries that predecease you, you can ensure that the gift will be left to the exact person you’d want to receive it.
What if a charity I have designated no longer exists at the time of my death?
There is a legal doctrine, called the cy-pres doctrine that allows a court to make a substitutionary gift to a similar charity that carries on charitable activities similar to those contemplated by you, the testator. In this way, the gift will not adeem or fail and will instead be granted to an alternate charity. For the court to exercise its jurisdiction, two things must be established: 1) that it is impossible or impracticable to carry out the deceased’s intention and 2) that the deceased, in making the gift, had a general or overriding charitable intent.
In what order is my estate distributed?
An executor has approximately one year to distribute an estate. Typically an estate will begin being distributed after the executor receives two things:
- A Tax Clearance Certificate from the Canada Revenue Agency
- A granted application for probate by the court
Probate is the term for when the court approves a will as valid and appoints the executor, permitting them to perform the duties necessary for the role. To obtain a certificate of appointment, one must pay probate fees (also known as estate administration taxes) on the value of the assets passing through the estate. While not all wills need to go through probate, the large majority do.
The Tax Clearance Certificate is not a legal requirement, however it allows the executor to know whether the deceased had any outstanding taxes to be paid. Most executors will wait to receive the certificate before distributing the estate to avoid any personal liability for paying the taxes.
This brings us to the first step of the distribution of an estate, paying any debts owed by the deceased. It’s important for an executor to start by paying the deceased’s debts (if any) before distributing assets to beneficiaries. If the executor fails to pay the debt, they could be on the hook to pay it themselves. Typically an executor will advertise for creditors in the newspaper or using NoticeConnect to ensure all possible debts are paid in full.
Once debts are paid, specific gifts are distributed to named beneficiaries. It may take longer for some specific gifts to be distributed than others. For example, an executor would need to change the title on a piece of property or a vehicle before handing it over to the beneficiary. This may take more time than distributing a gift like a painting or piece of jewelry. General gifts are distributed following specific gifts.
Finally, the leftover assets that remain (the residual estate) are distributed. Beneficiaries of the residual estate will receive their portion of the total assets remaining.
Remember that any time you update your will, you’ll need to print, sign and witness it again to make it legally valid. Ensure that you store it in a safe place, inform your executor where you’ve stored it and register it with CanadaWillRegistry.org (if you’ve created your will with Willful, your first registry is free).