Have you ever wondered what exactly should be included in your will?
Making a will is a big step and it’s important that you feel confident your document reflects your wishes. We’ve put together a sample will to help you understand what makes a will legal and how Willful builds you your own personalized estate plan.
Here is a sneak peek of our sample Willful will. You can download the full sample will here.
While we’ve tried to keep our documents as simple to read as possible, they do include some legal language that can be difficult to understand. Whether you’re looking to create your will with Willful or simply looking to understand the legal language, we’ve broken down the clauses in a Willful will to help you understand what exactly is included.
It’s important to note that your documents will differ based on your province of residence. Each province has its own legislation that governs wills and estates law, so certain clauses may be written differently, refer to different legal Acts, or be omitted entirely. We have worked closely with estate lawyers in each province to ensure your documents reflect the applicable and current provincial law.
Clauses In A Willful Will
Here’s an overview of the clauses included in your Willful will:
Page 1: Instructions page
The cover page of your will is the instructions page. This is not part of your legal will, rather it gives you an overview of how to print, sign, and witness your will in order to make it legally-valid. It also includes details on how to store and register your will with the Canada Will Registry, and provides details on an optional final step (getting a notarized affidavit of execution for probate).
Page 2 onwards: Your will
The rest of the document is the actual will - here’s an overview of the clauses included in the document. Note that you may not see some of these clauses depending on your life situation, sections you choose to skip, or your province.
The requirements for creating a legally valid will refer to age and general mental state. You must be:
- Over the age of majority (barring certain exceptions);
- Be mentally capable;
- Have actual knowledge of the contents of the will and approved the will;
- Be signing the will voluntarily, free of any undue influence or other forms of fraud;
- Not be signing the will under suspicious circumstances;
- Not operating under certain mistaken beliefs
- By signing a will, you are stating that you have the capacity to create these documents.
Willful does not require or allow you to create a codicil that updates or amends an existing will. Instead, the revocation clause means that when a new will is created, the existing will is no longer in effect. Willful updates your will by revoking your existing will and creating another properly-executed will, which is why you will need to get your new will witnessed again. It is recommended that you destroy your old will to avoid future confusion. It’s important to note that even if your will didn’t include a revocation clause, the law automatically revokes a previous will as soon as a new one is executed.
This clause stipulates which provincial laws the will abides by. Each province has legislation that governs wills, so if you move provinces it’s best practice to update your will (though in most provinces, a will from a different province is recognized).
Appointment of an executor and trustee
The next clause in your will refers to the appointment of executors, and allows you to appoint an executor and multiple backup executors in case the primary executor is unable or unwilling to act in this role. Although the appointment of the executor is fundamental, many wills fail to appoint an alternate in case the primary executor is deceased, unable to act, or unwilling to act. Without an appointed alternate, the estate must be administered by an alternate who applies to and is appointed by the court to take charge of an asset. Willful allows customers to appoint up to 10 back-up executors.
In a Willful will, your executor and trustee are the same person. This means that if your will results in the creation of a trust, your executor will manage the funds held in trust for any minor beneficiaries until the age you stipulate in your will.
While you are legally allowed to appoint multiple executors, called “co-executors,” Willful currently doesn’t support this. Willful also doesn’t currently support the appointment of corporate/professional executors. We will be adding support for both of these things in the future, and you can sign up to get notified about these additions here.
Disposition of estate
This clause outlines how your estate will be distributed, and in which order. It outlines that your estate will be handled in the following order:
- Debts and taxes will be paid first - this includes any debts you hold, any probate or income taxes, any estate expenses including funeral arrangements or professional services, and any fees associated with the distribution of gifts
- Specific gifts - if you’ve assigned any specific gifts, they are distributed next after debts/taxes are paid. Any specific gifts you’ve assigned will be listed here.
- Pet trust - if you’ve decided to leave money for your pet’s care, it is essentially treated as a specific gift, and paid out after your specific gifts. This clause outlines the sum of money and who it should be paid to.
- Additional memoranda - if you’ve compiled any additional letters to the executor or wishes that aren’t contained in the will, for example guidance on how to distribute clothes or other personal effects, this clause allows your executor to distribute them as per your wishes.
- Charitable donations - this clause outlines any lump-sum charitable bequests, including the sum of money and the charity’s CRA registration number.
- Beneficiaries - this clause outlines how your residue will be distributed (everything that’s left after debts, taxes, and specific gifts are distributed). This is one of the most important clauses in your will, as it often represents the largest pool of assets. It outlines how the residue should be distributed by percentage as per your wishes in the “your estate” section
- Predeceased beneficiaries - this clause outlines what happens if one of your beneficiaries passes away before you. Willful allows you to stipulate that their share is split amongst the other beneficiaries, or that the person’s share goes to their children. We are working on the ability to add specific backups for each beneficiary.
- Contingent beneficiaries - this is an optional clause that allows you to appoint up to 10 contingent beneficiaries. Think of this as a disaster clause - if all of your appointed beneficiaries passed away before you, who would receive your residue? Many estates default to intestacy (as if you died without a will) because there aren’t sufficient layers of beneficiaries - so it’s always a good idea to add people or charities who would receive your estate if there were no surviving beneficiaries.
- Disputed donations - this clause allows your executor to pick a similar charity if your intended charity is no longer operating at the time of your death, or if there is a dispute or conflict about the intended charity.
Willful includes a survival clause when appointing executors, and when appointing beneficiaries. It states that an executor can only accept the appointment, and a beneficiary can only receive a gift, if they survive you by 30 days. This clause specifies the period of survival and to whom the gift will go if the beneficiary does not survive the will-maker.
A survival clause is important to have in case you and your executor or a beneficiary pass away at the same time. For example, if you were in a car accident with your spouse and you passed away immediately but your spouse passed away five days later, a survival clause would ensure that your estate did not pass to your spouse (and then on to their beneficiaries), but rather it would go to your backup beneficiaries (the people other than your spouse who are named in your will).
Power of Trustees
This section outlines what powers your executor and trustee have when wrapping up your estate. This section outlines eight separate powers, including the ability to sell real estate and assets, to use their discretion when not realizing your estate, to pay taxes, to distribute assets to beneficiaries, to invest money, and to settle any claims against the estate.
Here are a couple notable clauses in this section:
- Dealing with real property - Even if you don’t own real estate (real property) at the time of preparing your will, you may own it in the future. If a property is owned jointly with rights of survivorship, it passes outside the estate, meaning that its distribution is not managed by your will. However, if a property is registered as “tenancy in common” or solely in your name, it passes to the estate, and its distribution is managed by your will. If you’re not sure how yours is registered, you can check with the lawyer who registered the property. In these cases, your executor should have the power and flexibility to deal with property as they deem appropriate.
- Carry on business - if you own or operate a business either now or potentially in the future, it is a good idea to have a clause in your will giving your executor the power to carry on the business. Each Willful will has this clause to ensure that if someone does start a business in the future - even if they don’t have one today - their executor has the power to make decisions related to that business. This clause allows your executor to carry on, wind up, or sell your business interests, and perform any action that you would have been able to do while living. Note that if you have complex wishes for how your business is disposed of, you may want to visit a lawyer.
Shares held in trust
A testamentary trust is an arrangement that assigns a trustee to hold assets on behalf of a beneficiary. It specifies when and under which conditions your beneficiary may inherit the assets - with Willful you can stipulate that a minor beneficiary receives their inheritance at ages 18, 21, or 25, and we’re adding more flexibility in this section soon. This section also outlines that if the beneficiary passes away prior to reaching the age you specified, the trust would go to their children. If they don’t have any children, it would fall back into the residue and be paid out to your beneficiaries.
For example, if you leave part of your estate to a minor - a child or relative under the age of majority - a Willful will stipulates that those assets should be held in trust until the age you specify. Even if you don’t have any minor beneficiaries now, you may when you pass away (for example if one of your beneficiaries passes away before you, their share may flow to their children), so we include this clause even if you don’t have minor children today.
Inclusion of a holding or trust clause creates an ongoing trust. If you do not name a separate trust to manage the share of the underage beneficiary, the responsibility falls to the executor as trustee of the estate.
Payments to guardians of minors
This clause gives your trustee the right to give payments to guardians of minor children (for example, to pay for schooling, housing, or other expenses associated with raising the child).
Capitalization of income
As part of wrapping up your estate, your executor may invest your assets, and those investments may earn interest or earn returns. This clause states that any income earned on a beneficiary’s gift shall be paid to that beneficiary.
Ademption happens when property that is the subject matter of a gift in a will, which was in existence at the date of the will, is no longer part of your estate at the time of death, and the gift is said to adeem. For example, you gift your car to your brother, but at the time you pass away, you had previously sold the car and it’s no longer available to gift to him. This clause states that if a gift is not held by you at the time of your passing, the intended recipient of the gift is not entitled to the equivalent value of the gift.
If you choose to include funeral and burial wishes in your will, they will be listed here. Note that these are not legally-binding aspects of your will, but if they’re included your family will most likely follow them. Note that it’s important to also communicate any funeral or burial wishes to family members, as it may take time for them to locate your will.
Note that if you have additional funeral or burial wishes, you can store them with your will since they’re not a legally binding part of the will.
Guardianship and custodianship for minors and pets
If one parent is alive following the death of the will-maker, guardianship and custodianship reverts to the remaining parent (guardianship is the care of the child; custodianship is the management of their finances). However, if both parents die, an appointment of guardianship may be necessary, and would look like something as follows in your Willful will: “In the event of the death of me and my spouse, (name of spouse), before all my children attain the age of majority, it is my wish that (insert names of custodians and guardians) be granted guardianship of my children during their minority.” Willful customers can specify back-up guardians for their children, which adds a layer of additional certainty to your plan.
Similarly, there is also a clause in your Willful will to choose a guardian to care for your pets, as well as allocating resources for your pet guardian(s) to cover the cost of caring for them (addressed in the disposition of estate section).
Note that in most provinces, the appointment of a guardian for minor children is only in effect for 90 days, and then the guardian will have to apply to the court to be formally appointed.
This clause just stipulates that any section headings used in the document are for convenience only.
And that’s it! Congratulations on finishing this tour of your Willful document. Hopefully this helps give you the confidence to read through your Willful will and understand its contents, and the powers that the documents give to your beneficiaries, executor, and guardians. Don’t forget, you are able to come back to Willful and make changes to your will at any point in time!
If you have any questions about your document, or you’d like to know what clauses/sections we hope to expand in future, send us an email at email@example.com. We’re always here to help!