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Complex Situations That May Require A Lawyer

In this article:

    While Willful is a good fit for the majority of Canadians, there are a number of situations that can add complexity to your will and require legal advice from a lawyer. These are the most common complexities that we see:

    You’re looking for advice about your estate.

    While our documents were created by our legal advisors in each of our active provinces, Willful is not a law firm and we cannot give you any legal advice. If you have legal questions or need advice specific to your situation, seek assistance from a local estate lawyer. 

    You’re separated but not divorced.

    Willful treats separation as legally-married, meaning that you are not able to disinherit your previous spouse. If you are separated, seek advice from a lawyer to create a separation agreement and ensure that your property is passed on exactly how you intend. 

    You want to create a Henson trust.

    A Henson Trust is often used by those who want to protect assets for a beneficiary living with a disability. Willful does not offer the ability to create any trust (your Executor/Estate Trustee will set that up as part of their duties after the testator has passed) including a Henson Trust since there are many factors unique to a person’s situation that need to be considered. It’s best to seek legal advice from a lawyer with experience in creating Henson Trusts. 

    You want to create any other trust other than a simple testamentary trust.

    There are a variety of different types of trusts that Willful cannot accommodate – for example Willful does not support a Life Interest trust, which allows someone to either live in your property or benefit from an asset until they pass away, or a living trust, which allows you to transfer assets into a trust during and after your lifetime. If you need advice on trusts, you would need to visit a lawyer.

    You want to create dual wills.

    With dual wills, different wills are used to handle different assets either to deal with assets in multiple jurisdictions or to minimize probate fees. This requires careful consideration to ensure that one will does not revoke the other, a task best left to estate lawyers with experience creating dual wills.

    You want to exclude/disinherit a child, spouse, or family member.

    If you would like to exclude a dependent like a child or spouse from your will, due to provincial laws that govern a child/spouse’s right to your estate, this will likely require an explicit note that Willful currently does not support. If this is something you require, it is best to work with an estate lawyer to draft your will accordingly. If you are concerned that a family member may challenge your wishes for any reason, you may want to seek legal advice to include specific instructions around their exclusion.

    You want to add custom clauses or complex wishes.

    Willful doesn’t support adding free form text or custom clauses at this time, and we don’t support many complex scenarios (for example any “if this then that” scenarios, tiered wishes, or gifts that are dependent on something happening). If you want the ability to write in custom clauses, you may consider visiting a lawyer. Note that funeral/burial wishes aren’t legally-binding (outside of BC), so if it’s additional wishes related to those you can type up a letter outlining those wishes and store with your will. If you aren’t sure what constitutes a complex scenario, please reach out to us and we’re happy to direct you accordingly.

    Other considerations that add complexity

    You want to choose an executor living in another province or country.

    If your executor resides in another country, there may be tax implications or difficulties accessing bank accounts in Canada. You should speak with a tax advisor before assigning an out-of-country executor.

    If you want to choose an out-of-province or out-of-country executor, they may be required to post an estate bond. At this time, Willful does not offer the ability to include a clause allowing your executor to serve without bond. If this is something you’d like to include in your will, visit a lawyer. You can read more on out-of-province executors here.

    You have assets in various provinces and countries.

    While Willful does cover property owned in another province/country, how that asset is taxed varies depending on which jurisdiction the property is located in and the laws of that jurisdiction. For example in Canada there is no inheritance tax, but that’s not the case in many countries. To be safe, you may want to consult a tax advisor, financial planner, or lawyer in that jurisdiction to understand the implications of foreign assets, and you may want to create multiple wills to deal with assets in multiple jurisdictions. It is best to do research to make sure you are comfortable using Willful to create your legal documents.

    If you are still unsure if Willful is the right fit for your situation, you can also always live chat, call or email us to ask. We want to ensure that every Canadian gets a proper estate plan in place - even if that means directing you to create your will elsewhere. 

    You or your loved one dies abroad.

    It can be a stressful and confusing experience when someone dies abroad. The process can be a lot smoother and more clear if the deceased person has a legal will and other documents in place.

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