It’s official! You’re getting ready to draft your first legal will. The thought of preparing your first will can seem daunting. It’s a complicated subject that can drum up difficult emotions such as the fear of the unknown. As a result, estate planning often gets bumped to the bottom of the to-do list.
Thankfully, writing your will is actually a fairly straightforward process. In this article we’ll cover the basics around writing a will in Canada and how simple it actually can be.
Why Do You Need A Will?
To put it simply, your last will and testament is a blueprint for your family when you pass away. Your will guides your loved ones through how you’d like your assets to be divided and any other end-of-life wishes you may have. If you die without a will, your assets will be divided based on your province's regulations around intestacy. The court will also have to appoint an executor for you, along with any guardians for minor children.
By writing a will, you know that in the event of your death, you will be contributing to the well-being of your family members and loved ones.
Who Can Write A Will in Canada?
While the specifics around who can write a will in Canada varies from province to province, the general rule is that anyone over the age of majority who is mentally capable can write a will!
In certain provinces, the age of majority rule is except for some individuals, such as those who are legally married and members of the Canadian armed forces.
There are no requirements for the amount of assets you have or other restrictions. Essentially, any adult can and should write a will!
How To Write Your Will In 6 Simple Steps
Writing a will is easier than you may think. Here are 6 easy steps to help you write your will:
1. Identify the key people involved
Before sitting down and writing your will, it’s essential to outline the list of people you’d like to fill the following key roles.
Custodian(s): the custodian(s) of your child is responsible for the physical custody of a minor if you and your spouse pass away. Oftentimes the custodian is the same person as the guardian.
Guardian(s): The guardian(s) of your children will assume management of the assets of a minor if you and your spouse pass away. It can be a single person or a couple who you trust completely.
Executor and Estate Trustee: Ideally a spouse, relative or close friend, this person executes the wishes in your will, distributes funds to your beneficiaries, and can act on behalf of your business and financial interests.
Spouse: If you’re married or have a common-law partner, you may want to work together to make decisions on your shared assets or dependants.
Attorney for property: This person will make decisions about your property and finances if you are medically unable to do so yourself. Choose somebody you trust such as a spouse, relative or a close friend.
Attorney for personal care: A spouse, relative or close friend with good judgment, this person will be the voice of your healthcare decisions if you are unable to communicate.
Backups: Specifying backups (also called substitutes) will add additional layers of certainty to your plan. Your initial choice may refuse the task, or be unable to act for other reasons, which is why it’s important to have a plan B.
2. Have the conversations
However hard or uncomfortable the discussion may be, once you’ve decided who the key people involved in your will should be, it’s important to talk to them. Roles such as the guardian or attorney for personal care can be financially and emotionally taxing, so it’s important to ensure that they are willing to take on the responsibility.
If you find end-of-life conversations sensitive, we’ve gathered some tips to help make talking about wills a bit easier.
3. Make a list of your items for gifting purposes
Take a tour around your home, and create a list of valuables and items that you’d like to include in your will as it’s hard to think through all the items on the spot.
Specific gifts, also known as Bequests, are identifiable pieces of property or monetary amounts gifted to individuals upon your passing. These gifts are not included in your residual estate. Some common gifts include cash, jewelry, art, clothing, family heirlooms or mementos with special meaning.
You don’t need to include any specific items in your will, unless you’re gifting it to a specific individual. (ie. You want to give your red Honda to your sister Katy). Any items not listed as a specific gift will be included in your residual estate and distributed accordingly.
In terms of the financials, you don’t need to worry about calculating your current net worth or the value of your RRSPs – your will covers your umbrella estate (everything you own, unless it’s owned jointly, or already has a named beneficiary).
4. Involve your spouse or partner
If you’re married or in a common-law relationship it’s a good idea to sit down together when drafting the will, especially when making important decisions like who will care for your dependents when you both pass on.
Equally as important, is the opportunity to discuss your wishes with your partner. A study Willful conducted with Angus Reid, showed that two-thirds (66%) of Canadians don’t know the end of life wishes of their spouse.
It’s important to remember that both you and your partner will need to have your individual wills signed and witnessed separately.
5. Decide how you want to write your will
Depending on your unique life situation and the complexity of your wishes, you’ll need to decide how you’d like to write your will. Most Canadians will go with one of the 4 following options:
- Visiting a lawyer
- Writing a holographic will
- Using an online will platform
- Purchasing a DIY will kit
Any of these options can help you create a legal will. It’s important to remember that what makes your will legal has nothing to do with whether it was created with a lawyer. To help find the best way for you to write your will, we’ve broken down the pros and cons for each method of making your will here.
5. Block off some quiet time
When you’re finally ready to sit down and create your will, find a quiet place with limited distractions so you can avoid making any mistakes. You will want to block off between 20 minutes to a couple of hours. The amount of time needed will depend on how you’ve decided to make your will. If you’re working with you’ll need to block off time for your in-person appointment.
With Willful, you can easily complete your will within 20 minutes from start to finish. Plus, you can do it from the comfort of your home!
And that’s it! It’s truly not as complicated as many people perceive. Have the important conversations, gather those important names, and check this important to-do off your list today.
Common Questions About Writing A Will in Canada
Is Writing A Handwritten Will Legal In Canada?
Yes! In most Canadian provinces, handwritten wills are legal. Handwritten wills are also known as holographic wills. They must be written 100% by hand, without the aid of any mechanical devices (ie. typewriters, computers). Holographic wills are the only type of wills that do not require witnesses.
However, handwritten and holographic wills are not recognized as legal wills in BC or PEI
Common Mistakes When Writing A Will in Canada
We’ve rounded up some common mistakes that people make when writing their wills.
- Not getting the will properly signed and witnessed. Your will is not legally-binding until you’ve followed all the requirements for signing and witnessing. At Willful, we include full detailed instructions to make sure you don’t miss anything along the way.
- Writing a will for someone else. You cannot write a will on behalf of another person. A will is only legal if the testator is of sound mind and has written the will themselves.
- Storing the will online. In Canada you cannot store your will digitally. Only the original, physical copy, with the wet signatures is valid.
- Not telling anyone where your will is. If no one knows where your will is, it can make things difficult after you pass away. Make sure your executor knows where your will is stored, since only the original copy is valid.
- Making a video will. Despite what many people believe, you cannot make a video of yourself dictating your wishes. A legal will must be written out.