At Willful we’re committed to helping Canadians with simple situations create their will and power of attorney documents online at an affordable price. Part of our mission is ensuring that our customers have documents that work well for them - which is why we’re as committed to educating you about when you may not want to use Willful as we are about educating you about when you may be a fit for our platform.
It can be confusing to know whether you’re a fit for a platform like Willful: what adds complexity to your situation? What are the types of things that would lead you to want to visit a lawyer instead of using an online platform? In this article we break down some of the common things that either add complexity, or that our platform can’t currently handle, so you’re empowered to make the right decision. Remember, at the end of the day we want to ensure you have a will - whether it’s with us, or with someone else.
It’s important to note that there are two reasons you may not want to use Willful: because our platform doesn't support what you want to do; or because what you want to do has tax/legal implications that may require additional tax or legal advice. In each section we’ve provided details on whether you *can’t* do this on our platform, or you *can* but you may want to seek out tax/legal advice.
The following scenarios have tax implications and we recommend also speaking with a tax advisor.
I want to appoint an executor outside Canada. Can I use Willful?
When you pass away, the place you reside at death becomes the residence of your estate - for example if you pass away in Ontario, your estate will be located in Ontario. If you appoint an out-of-country executor, however, it changes the location of your estate to wherever the executor resides. This can have major tax implications, since for example the U.S. or UK have very different estate settlement rules and taxes than Canada does (for example Canada doesn’t have an inheritance tax; whereas the U.S. does). There are also practical implications to appointing an out-of-country executor - this is a role that requires 18-24 months of work, and some of that will likely be in the location you passed away (packing up belongings, selling properties, visiting financial institutions, etc.) so it may be difficult for that person to act in that role. If you are appointing an out-of-country executor, consider both the logistical and practical considerations, and you may want to speak to a tax specialist about how this would affect your estate after you pass away.
I own assets or property in another country. Can I use Willful?
For the most part, creating a will on Willful covers your assets in any part of the world, except for real estate/land - that is governed by local laws when you pass away. So for example if you have investments in the U.S., and a house in Florida, the will you make in your province will cover the investments in the U.S., whereas the property will be dealt with under local Florida laws. Many people choose to create a secondary will in that other country - for example creating one will in Ontario to cover your Canadian assets, and one will in Florida to cover your assets in the U.S. - and this is simply for tax purposes, so the assets are separated and dealt with under their respective local laws. If you don’t create that secondary will, it’s not like the assets won’t be dealt with - they will either be handled under your Willful will (for any non-real estate assets), or under local laws (for any real estate assets). But at this time, Willful does not handle the creation of secondary wills in other countries, since typically the two wills reference each other. If you do want to create a secondary will in another country, you would likely need to visit estate lawyers in both countries to get this taken care of.
I live outside of Canada, but I own assets in Canada. Can I use Willful?
As outlined in the previous section, Willful does not support the creation of secondary wills - if you live in another country, and you pass away in that country, you would need a will in that jurisdiction. It is possible to create a secondary will in Canada to cover your assets here, but Willful does not support the creation of secondary wills at this time, since typically the two wills reference each other. If you do want to create a will in the country where you live, and a secondary will in Canada, you would likely need to visit estate lawyers in both countries to get this taken care of. Also note that if you live outside Canada and do not have Canadian assets, Willful is also not a fit as we only service Canadian residents.
I have a business and I want to create a dual will. Can I use Willful?
We covered everything you need to know about creating a will as a business owner in this article, so make sure to read that if you own a business. Willful wills contain a carry-on business clause, which allows your executor to act on your behalf for your business interests. But many business owners want to create what’s called a dual will, which separates their business assets from their personal assets in order to avoid probate, and the fees that come along with that. It is a way to reduce taxes, and is not necessary for business owners - but it’s important to note that in Ontario, probate fees are equal to about 1.5% of your estate, so this can add up if you have business assets that are sizable. Willful does not handle the creation of dual wills at this time.
The following are scenarios that Willful cannot accommodate at this time:
I need to create a trust. Can I use Willful?
If you pass away and you have a minor beneficiary, Willful triggers the creation of a simple testamentary trust, which means that any inheritance for a minor will be held in trust until the age you specify and managed by the trustee (who also acts as your executor). Beyond that, we do not handle the creation of any trusts, including:
- Henson trusts - this type of trust protects allows dependents with a disability to receive an inheritance while also still receiving government disability benefits
- Spousal trust - common for blended families, this allows you to leave assets to a spouse, but stipulate that upon the spouse’s death, the assets go to your children (for example this protects your assets from going to your stepchildren or your spouse’s relatives vs. your own children)
- Life interest trusts - this type of trust allows someone the benefit of an asset until their death: for example “I want cousin Joe to be able to live in my house until he dies, and at that point the house should be sold and the proceeds given to my best friend Jen”
I want to leave a gift that has a condition on it. Can I use Willful?
Sometimes people want to put conditions on the gifts they leave to people - for example “I only want Joan to get my car if she graduates university,” or “I only want John to have my car until he moves outside of Canada.” A condition can be something happening in order for someone to receive a gift, or something ceasing to happen that stops the use of a gift. At Willful we don’t have any conditions on our gifts - you can leave a specific gift to anyone (for example a diamond necklace to a sibling, or $5,000 to a charity), but you can’t put conditions on it in our platform.
I want to disinherit someone. Can I use Willful?
This is an extremely important one: Willful allows you to state what you DO want to happen when you pass away, not what you DON’T want to happen. So let’s say you have three children, and you want to disinherit one of them because you haven’t spoken in 10 years. On Willful, you would be able to leave them out of the will, but you can’t add any notes or supporting evidence about WHY they are being left out of the will. This is problematic for two reasons: first, there are family laws in each province that entitle your spouse/children/dependents to a share of your estate - which means that even if you leave a child out of your will, they would likely get a share of the estate if they were to challenge it. Second, it means that if the person you disinherit ever challenges the will, there is no supporting evidence in the will itself that speaks to the reason you left this person out - whereas if you visited a lawyer, for example, they would be able to write in details about why you’re leaving them out. If you want to disinherit someone, especially a spouse or child, you may want to visit a lawyer to discuss your options.
Other common scenarios:
- I have beneficiaries outside Canada. Can I use Willful? Yes! You can include beneficiaries from anywhere in the world in your Willful will - just note that every country has their own inheritance laws, so how the inheritance is taxed will change based on where they live.
- I want to appoint a guardian for my child/children and they live outside Canada. Can I use Willful? Yes! You can appoint a guardian anywhere in the world. Note that it is possible to work with a lawyer to include language in the will about WHY you are appointing an out of country guardian (since it’s always advisable to appoint someone in your own country, since it’s less disruptive to the child/children), but it is not required.
- I want legal advice. Can I use Willful? Willful cannot offer legal advice, so you may just want to visit a lawyer so you can sit face to face and get legal advice that’s personalized to your situation.
- I want to appoint joint/co-executors or joint/co-attorneys. Can I use Willful? Willful does not support co-executors or co-attorneys at this time (this is upon the recommendation of our legal advisors, who have seen way too many arguments and soured relationships because of joint appointments!). Remember, appointing an executor or attorney isn’t a popularity contest - it’s about choosing the person who you think would best represent your interests.
- I’m separated but not divorced. Can I still use Willful? Yes! As long as you have a separation agreement that clearly outlines what happens upon death, you can absolutely use Willful. If you do NOT have a separation agreement, note that your ex is still considered your legal spouse under family law, and they may have a valid claim against your estate if you pass away.
- I want to appoint an executor in another province. Can I still use Willful? Yes! Just be aware that they may be required to post a bond in order to handle your estate, and that there may be practical issues with administering an estate from out of province. Read more in our guide to out-of-province executors.
- I want to appoint a corporate executor/trust company instead of an individual. Can I use Willful? No, at this time we only support adding an individual person as executor - this is because a trust company or corporate executor has very specific language that needs to be added to the will, and we can’t accommodate that. If you want to appoint a corporate executor you would need to visit a lawyer.
- Can I use Willful if I’m not a Canadian citizen? Yes! Your residence the time of death dictates where your estate is located, so if you pass away in BC, your estate will be located in BC. Note previous sections about having executors, assets, and beneficiaries in other countries.
The bottom line - if any of these situations apply to you, you may want to seek out tax or legal advice:
- You have a child or dependent with a disability and require the creation of a Henson trust: requires an estate lawyer to set up
- You want to appoint an executor outside of Canada: speak to a tax specialist
- You own foreign property and you want to create a will in that location in addition to your will in Canada OR you live somewhere outside Canada and want to create a will in Canada that pairs with the will where you live: speak to an estate lawyer in Canada and in the other country
- You own a business and want to create a dual will to separate your business assets for tax purposes: speak to an estate lawyer (if you just own a business, a Willful will covers your business assets)
- You are separated but not divorced and you do not have a separation agreement that clearly outlines that your ex is not entitled to anything upon death: speak to a family lawyer to get separation agreement set up
- You want to disinherit someone, especially a spouse or a child: speak to an estate lawyer
- You have a blended family and you want to ensure that there’s no way your spouse could cut your children out of the will (this would involve the creation of a spousal trust): speak to an estate lawyer
- You want to appoint a trust company or corporate executor instead of an individual