People are often surprised to learn that they can make a will without a lawyer. In Canada, there are a few methods to write a legally valid will. In this article, we break down every step of the will-making process, beginning with the planning process to the final steps of signing and storing your will.
What are the 3 different ways to make a will without a lawyer?
Aside from making a will with a lawyer, there are 3 different ways to make your will:
- Write a holographic will (also known as a handwritten will)
- Purchase a DIY will kit
- Use an online will platform
Depending on your circumstances, there are pros and cons to each of these options. It’s also important to note that a holographic wills cannot be used to deal with real property in British Columbia (for example, a home) and they are not recognized at all in PEI.
How do you make a will legally valid?
The requirements vary province to province, but generally the basic rules for making a legal will in Canada include:
- The will must be stored as a physical copy (you cannot store a will online with the exception of British Columbia where digital storage will be permitted as of December 1st)
- You must be of sound mind and over the age of majority in your province (if you’re under the required age, certain exceptions may allow you to make a legal will, like if you’re married, have children or are a member of the armed forces.)
- If the will is typed, you must sign your will in wet ink in the presence of two valid witnesses and they must sign to confirm they have witnessed your signature.
- The signatures must be at the very end of the will.
As you can see, none of the requirements for making a legally valid will include a lawyer! However, if you need legal advice, want to disinherit a family member, or wish to include custom clauses that are unique to your life situation, a lawyer is a must-have.
So can I just write a will myself?
While making a handwritten will (a holographic will) may be an option, it’s not necessarily the best method. Certain provinces, like PEI do not recognize holographic wills and in BC they cannot be used to distribute or deal with real property (such as a home or land). When people hand write their wills, they often leave important things out, contradict themselves or make vague statements. They also aren’t ideal if you need to make updates later on. Holographic wills can be a legally valid and cost-effective option, but it should be a last resort.
What are the steps for writing a will without a lawyer?
Ready to create your will but not sure where to start? Here is a list of steps that will help you make your will without a lawyer in no time!
1. Start by identifying and listing your assets
Before sitting down to make your will, we recommend going around your home and creating a list of specific items that you’d like to include in your will. This helps to avoid having to think of what you own on the spot, which can be overwhelming and can lead to forgetting about something important.
When making your list, it’s important to take care when describing the asset. A description should be concise but includes enough detail that the asset is easy to identify. Here are some examples to help guide you:
- My white Yamaha grand piano
- My silver iPhone 11
- My cottage at 123 Main Street in Kelowna
- Any funds remaining in my TD savings account
It’s important to note that you don’t need to include a detailed list of assets in your will. An asset list can help you to decide which specific gifts you’d like to leave and it can also be useful for your executor when they’re wrapping up your estate. The only time you need to mention a specific asset in your will is if you’re leaving it to someone as a specific gift.
2. Choose beneficiaries
Once you have a list of your assets, you can begin to name beneficiaries who will inherit them. This is a key part of your will, no matter how you’ve chosen to make it. Beneficiaries outlined in your will are the people or organizations you choose to pass your property and belongings to when you pass away. Note that a beneficiary does not have to accept a gift in your will, they are able to disclaim it.
Here are the reasons why you would name beneficiaries in your will:
- Leaving specific gifts: identifiable pieces of property or an amount of money gifted to a person or organization upon your passing. Specific gifts can range from real estate to cars to jewelry to recipe books to cryptocurrency. These gifts are not included in your residual estate.
- Leaving charitable donations: also known as legacy gifts, these can be made in two ways, leaving a specific piece of property or cash amount or a percentage of your residual estate.
- Splitting up your residual estate: after any debts are paid, specific gifts and charitable donations are made, the remainder of your estate is distributed. This often forms the largest financial component of your estate, so it’s important to think carefully about the beneficiary or beneficiaries you want to receive a percentage of your residual estate.
3. Choose a guardian for your child (and pets!)
Another very important part of your will is naming guardians for any minor children and/or pets. It’s difficult to think about someone else raising your child, but if something were to happen to you and the other parent, picking a guardian to care for them will help secure their future. Be sure to speak with the desired guardian to ensure they are willing and able to take on the responsibility - their appointment is not effective without consent of the person appointed. As a best practice, you should explain the process, the duties required, your expectations and how you would like your child to be raised, and any other important details.
If you have a furry family member, it’s also important to name a pet guardian. A common reason that pets end up in shelters is because their owner has passed away without a plan in place for their care. Like choosing a guardian for a child, be sure to speak with the desired pet guardian to confirm they would be happy to become your pet’s new parent if something were to happen to you.
Read More: How To Choose A Guardian
4. Choose an executor
So you’ve named beneficiaries, left specific gifts, divided your residual estate, and chosen guardians — now what? Who will make sure these wishes are actually followed? Your executor! Your executor is responsible for distributing assets and funds to beneficiaries, paying off debts, recovering money owed, paying your final tax return, and handling your funeral and burial wishes. There’s a lot to do and it’s an important job, so this person is typically a relative or close friend. Here are some helpful criteria to consider when choosing an executor:
- Choose someone who is responsible and you trust
- Choose someone who is available (both in terms of living nearby and mentally competent)
- Choose someone who is comfortable taking on the responsibility
- Choose someone who is likely to be alive
Before naming your executor in your will, it’s a good idea to have a conversation with them to make sure they’re willing to be your executor when the time comes.
5. Making your will official
Once you’ve drafted your will and it accurately reflects your wishes, the final steps of signing and witnessing are required to make it legally binding. Two witnesses are needed to confirm the testator has indeed signed their own documents, and they will confirm this by signing the documents as well. This has to be done on a paper copy with ink (except for in British Columbia after December 1st, 2021 which will allow for digital signatures).
After you’ve finished signing and witnessing, store your will in a safe place, away from moisture and sunlight. Make sure to tell your executor where you’ve stored it, so you don’t leave them with a scavenger hunt.
You can also register your will on CanadaWillRegistry.org so that if your executor forgets, or you forget to tell them, they can perform a search to find out exactly where it’s located. By registering your will, a lengthy search (and the stress and potential costs that come with it) is easily avoided. When you make a will with Willful, you get one free will registry ($40 value).