Will-Making in Plain English: What is the Legal Process for Creating a Will in Canada?
Anita Chauhan
Pre-planning can be tough. Understanding what you need to do and how to do it when it comes to paperwork concerning end-of-life arrangements are especially tricky to navigate.
And to be frank, is not something that sounds like a fun way to spend your time off.
Yet, managing this aspect of your life can help you in the long run. Currently 56% of Canadians don’t have a Will. That number jumps to 88% if we look at those between the ages of 27 and 35. While many Canadians have not spent the time to prepare a Will, taking the time to prepare one can help you stay in control and ensure that your wishes will be met in any situation.
We’re here to help make it easier for you. We sat down with Dan Goldgut and Arin Klug, Co-Founders of Toronto-based startup Epilogue, to get a clearer picture of the Will-making process and how you can easily go about it.
What is the difference between a Will and a Power of Attorney?
When it comes to differentiating between two of the more commonly-recognized terms in the space, here are the most notable differences:
A Will is a legal document that allows you to provide your instructions for what you want to happen when you’re no longer alive. It is formally called a “Last Will and Testament”.
This is different from a Power of Attorney, which are legal documents that give the people you choose the legal authority to take care of things for you in case you ever become incapable.
A Will only deals with what happens once you are no longer alive. Powers of Attorney, on the other hand, operate if you are alive but not mentally capable of making decisions for yourself. This could be as a result of an accident or a gradual, age-related decrease in your cognitive abilities.
There are two types of POAs to consider: POA for property and a POA for personal care.
What is the legal process for creating a Will in Canada?
There are several ways to make a legal Last Will and Testament in Canada. Some are more appropriate for you than others based on your situation:
a) Have a lawyer draft your Will (range in quality; highly specialized lawyers can be very expensive.)
b) Online tools like Epilogue let you create a customized, legally-binding will in 20 min or less. This is a good option for people that don’t have complicated estates. Fraction of the cost of a lawyer-drafted Will. For people with more complicated estates, lawyer-drafted Wills are usually a better option.
c) DIY paper Will kits (these are cost-effective, basic templates you can buy in-store but don’t allow for any customization.)
d) Holograph Will - write your Will yourself in your own handwriting (most cost-effective, but not recommended as it’s prone to errors).
With the exception of a holograph Will, which only requires the signature of the Will-maker, under all other options your Will is only legally-binding once it’s physically printed and signed (in ink) in the presence of two witnesses.
You should only have one, originally signed copy of your Will.
What happens if you die without having a will?
This is a common question. If you die without a Will, it’s called dying “intestate”.
Dying ‘intestate” means that your assets are distributed according to the default rules of the province you live in. For those in Ontario, you can find the rules here.
In most cases, this leads to a result that the deceased person would not have wanted, so it is in your best interest to do some planning in advance.
The distribution depends on your familial relationships at the time of your death and follows a set of strict guidelines set out in your respective provincial legislation.
What happens to your “stuff” or property when you die?
If you have a Will, you get to decide who gets your “stuff” and/or property. These people are called Beneficiaries.
If you don’t have a Will, your assets will be distributed according to the default rules of the province where you live and your money and assets may not go to the people you want them to.
In one extreme end of the spectrum, legal battles can take years for larger and more complicated estates like those of Amy Winehouse, Prince, and Aretha Franklin.
If you live in Ontario and have children, they can legally inherit their ‘estate’ at the age of 18, unless you specify otherwise.
When you have a Will, you can decide who will hold and manage your assets for any minor children until they reach the age when you want them to get the property. If you don’t have a Will, the government will step in and manage these assets until the child is 18.
If you have step-children, you’ll have to explicitly state what you want them to inherit since they don’t meet the definition of “child” under Ontario’s current laws (unless you’ve legally adopted them.)
What can complicate a will?
Oh, so many things! After all, life is complicated and never goes as planned.
Here are some common life situations that might make estate planning more complicated:
a) You are separated but not divorced
b) You have child with a disability
c) You own property outside of Canada
d) You have a blended family
If any of these scenarios apply to you, we recommend you visit an estate planning lawyer for advice.
What is an executor and guardian and what’s the best way to choose who to appoint to those roles in your Will?
An "executor" of your Will will be in charge of managing everything after you die. You can appoint one or more people as executor if you wish! But it’s not a free-for-all. The executor can’t just do whatever they want; they have a legal duty to carry out the instructions provided in your Will.
If you want to appoint more than two people, you’ll need to decide whether they should act unanimously or by a majority (e.g. 2/3 can make a decision.). If you have kids under 18, you should appoint a “guardian(s)”. This person (or sometimes a couple) will care for your children if you pass away. This is a big deal and the decision should not be taken lightly.
Pro-tip: if you want to name a sibling as a guardian, it’s best to name the sibling and not their spouse. This covers you in the event that they end up getting divorced down the road.
It’s important to note that, in Ontario, the guardianship appointment in your Will is only valid for a period of 90 days. During that period of time, someone (likely the person you named in your Will) needs to apply for permanent guardianship. The wishes you express in your Will play a big role in helping the courts determine what’s in the best interest of your kids.
You should definitely sit down and have individual conversations with your executor(s) and guardian(s). These are potentially big responsibilities. It’s not only important to make sure they feel comfortable assuming their roles (should the need arise,) but also to let them know any other special wishes you have. For example, any special considerations for schooling.
When should you change your will?
You should review your Will every few years to make sure it reflects your current wishes.
Fun fact: 15% of Canadians have a Will but say it’s not up-to-date, which means their Will doesn’t reflect their actual wishes.
You need to review your Will anytime you experience a major life event like:
- An engagement or marriage
- A divorce or separation
- The birth of a child
- The purchase of property
- The death or incapacity of someone listed on your Will
- If your wishes have changed for any reason
When you review your Will, make sure it still accurately reflects what you want and that the people you've named as executors, beneficiaries, and guardians are still the right people for those roles.
How do you change a Will that is already created?
There are two ways to change a Will that has already been created and signed. The first is to create a Codicil, which is a document that sets out only the specific change you are making. It gets signed and should specifically say that it is not revoking the previous Will but rather simply adding, removing or changing something.
The second way to change a Will is to draft a new Will that takes the changes you want to make and includes them directly in the Will. You then need to print and sign the new Will with a new date (and potentially new witnesses). Once you do that, it revokes your previous Will.
Any time you create a new Will, you are automatically revoking any earlier Wills. You can only have one true Will at any given time.
If you have complicated estate or require legal advice you can go to your estate lawyer to make a new Will.
If you don’t want to (or can’t) visit a lawyer’s office, the easiest and fastest way to make a legally-binding Will–or update an old one–is to use an online platform like Epilogue.
Regardless of how you do it, the take home message is simple: make a Will. And just remember, it’s really not about the stuff you have, it’s about protecting the ones you love.
