Have you prepared a will stating the rightful heir of your assets? If not, you are not alone. A 2019 Canadian Financial Capability Survey found that only 22% of Canadians under age 35 and 95% aged 65 and above have a will. It is because you don’t think much about passing your estate when you are young. People also don’t make a will due to a misconception that you need a lawyer to write one, which could be expensive. 

This article will help you understand that anybody who is a major (as per the age rules) and of sound mind can write a legal will. All you need is a piece of paper and assets (it can also be your social media account) or a child or pet you want to protect after your demise. If you die without a will, the courts will determine how your estate is distributed to your family, who becomes your child’s guardian, or your pet’s caretaker. A will can protect your estate and distribute it to people you are willing to give it to. 

But before we get into how to write a will, there are certain things you should know. 

Things To Consider Before Writing a Will 

Types of Will

The first thing that comes to mind when you write a will is that will come into effect after your death. That is known as your Last will and testament. But there is also a living will that comes into effect if you become incapacitated from an accident or illness. The living will give a person you choose power of attorney (POA) to make financial and/or health decisions if you are incapacitated. But the living will should be made when you are mentally competent. It might never be used and become ineffective upon death or when the person becomes competent again. 

Parties To the Will

The most important part of the will is the parties involved: a beneficiary, a guardian for your children, a financial attorney and health attorney to whom you want to give the POA, and the executor. 

It is important to talk to the people you want to include in your will and share your wish list. The most important is selecting an executor who will take the administrative responsibility to liquidate your assets, deal with banks, insurers, government and tax agencies, and talk to family members. Choose a trustworthy executor who has time and is in the same territory as your assets. You can consider hiring a professional executor, an estate consultant or an accountant. They can even guide you on how to transfer property tax efficiently. 

How To Write a Legal Will? 

You can write a legal will in your own handwriting on a piece of paper duly signed by you and two other independent witnesses who are neither family nor parties involved in the will. Such a will is called a holographic will. You can also make a will using online platforms or a DIY kit and sign it with two witnesses to make it valid. The will doesn’t need to be notarized, stamped, or signed by a lawyer, nor registered to make it legally binding.

When you write a will, mention the date, as you must keep changing it after major life events like marriage, child, or divorce. Only the last updated Will before your death will be considered—also, state when the will comes into effect, after your death or if you become incapable.   

After taking care of the basics, focus more on the ‘who’ and ‘how’ of your estate and not so much on ‘what.’ 

  • Who – full name and address of your beneficiaries, guardians for minor children and executor. While mentioning these names, make sure you name the primary beneficiary, guardian, executor, and secondary person if the primary person is no longer available in the territory at the time of your death. 
  • How – mention how you want to divide your estate among your heirs. 
  • What – In the will, you can include specific items, such as family heirlooms, artwork, or jewellery you want to gift to a particular beneficiary. While you should prepare a list of all your assets and debts to help your executor liquidate assets and repay debt and income tax, you need not mention the list in the will. You can give the list separately to the executor, which includes account numbers, passwords, or any other detail the executor would need to access your assets. 

Even if you don’t mention the assets separately in the will, they become a part of your estate. For instance, John makes his daughter Maria his beneficiary of the estate. Even if he doesn’t list the items in the will, all bank accounts and property John owns will become a part of his estate and be transferred to Maria. 

Some assets like registered accounts (RRSP, TFSA) and real estate with joint tenancy are not included in the estate. They are directly passed on to the joint owner, saving up on probate fees. 

When is a Will Legal? 

Remember, only the original, physical copy, with the wet signature, is valid. It won’t be considered valid if you make a digital copy of the will or make a video of yourself dictating your will. Hence, store the original will in a safe place such as a home safe, a trusted friend’s place or your lawyer’s office. 

Inform your executor or a trusted person about the storage place. If your executor cannot access your will, it is as good as not having one. After your death, your executor will take the original copy of the will to a local probate court, where he will obtain a “Grant of Administration” through which he can accumulate your assets.

Contact McCay Duff LLP in Ottawa to Help You With Estate Planning 

A professional estate planning consultant can help you prepare and execute your will. The experts are updated about tax changes and can help you keep your estate planning in sync with the laws. To learn more about how McCay Duff LLP can provide you with your estate planning, contact us online or by telephone at 613-236-2367