Your will sets out how you want your assets distributed after your death. Learn more about why a will is important and what to include in it.
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What is a will and why should you have one?
A will is a formal document. It describes how you want your money, property and other assets — your estate — distributed after your death.
A will typically:
- Describes the powers and obligations of the executor and trustee(s).
- Provides instructions about the management and distribution of estate assets. This may involve the creation of a trust to allow for distribution later, or the immediate distribution of assets to beneficiaries.
- Names a guardian for minor children.
- Describes the burial wishes of the deceased person.
A valid, up to date will is essential to ensure your estate is distributed they way you want. A will can lighten the legal and administrative burden of your death for your loved ones.
If you die without a valid will, a court will appoint someone to administer your estate. Your assets would be distributed according to a formula set out in provincial estate and family laws.
Without a will, it’s possible the person looking after your estate may not be who you would have chosen to handle your affairs. Or the provincial distribution formula may not reflect your wishes. The process of settling your estate may likely be more costly and time consuming if you don’t have a will.
You can change your will at any time, as long as you have the mental capacity to understand any changes you make.
What should your will include?
Your will is about more than just who you want to inherit your property. Your will should include:
- Basic information about you
This includes your name, your address, and the date you signed the will. Your will should also state that it is your last will and that it takes the place of any previous will.
- The name of your executor
The executor is the person responsible for carrying out your wishes and distributing the assets of your estate after your death. In Ontario, an executor is called an estate trustee.
The executor’s job is central to the estate administration process. This can include arranging the funeral, paying bills, and distributing estate assets. You can also name co-executors instead of just one. Learn more about the role of the executor.
- Your executor’s right to manage your estate
You should give your executor the right to manage your estate. This includes paying your debts and final costs, such as your mortgage, loan payments, funeral expenses, and final income taxes.
- How you want your assets distributed
Your beneficiaries are the people you name in your will to inherit your assets. Your will should state who gets what from your savings and property, including your home, investments and cash. It should cover things you own, such as cars, furniture, pictures and jewelry.
Your will should also cover your digital assets. A digital asset is a record that is created, recorded, transmitted or stored in digital or other intangible form. Your will could include instructions for deactivating or deleting email or social media accounts. Or you might name a beneficiary for other digital assets that have monetary value such as crypto assets, reward points or intellectual property. Digital assets can also be items with sentimental value such as photos or letters.
You can distribute your estate in one of two main ways:
- By a specific bequest. For example, “I give my daughter Joan Jones the sum of $10,000 and my diamond engagement ring.”
- By a share in the residue, which is the amount remaining in the estate after all bequests, debts, and taxes have been paid. For example, “I leave my husband Bob Jones the residue of my estate.”
Creating a trust in your will can also provide other types of gifts. This is known as a testamentary trust.
Some assets may pass outside of the estate — that is, they are not included in your will. For example, the designated beneficiary of your RRSP, RRIF, TFSA or life insurance policy. You should ensure that the beneficiary named in the documents for these products is consistent with your estate planning objectives. Another example is if real property was held jointly with a spouse the property would pass outside of the estate.
- A guardian for your children
If you have children who depend on you for support, you should name a guardian for them if you die. If you have a spouse or partner, it’s important to name a guardian if both of you die at the same time. Your designation is not legally binding. But it lets the court know who you want to care for your children. This will likely be factored into the court’s final decision.
What role does legal advice play when making your will?
A lawyer can provide advice and expertise in drafting a will that truly reflects your wishes. While a lawyer’s time and advice cost money, a lawyer can ensure you’ve considered all aspects of your estate’s distribution.
When you are preparing your will, a lawyer can:
- Understand what you need to do and why.
- State your true wishes so they will be carried out the way you want them to be.
- Make sure your will follows the laws of your province.
- Reduce taxes and other costs your loved ones may face after your death.
- Make sure your estate can be quickly settled.
- Choose a guardian to care for your children.
Your lawyer can also make notes on your mental capacity to confirm that you are mentally fit to make a will.
Hiring a lawyer to draft your will is money well spent. A lawyer can ensure you’ve considered all aspects of your estate.
Do-it-yourself will kits
Do-it-yourself will kits are attractive because of their low cost. Most of these kits are under $50, compared to legal fees of $300 to $1,000 or more to have a lawyer draft your will. While some kits have been approved by experienced lawyers, and contain clear and comprehensive drafting instructions, they can’t replace years of legal training and experience.
The money you save by using a kit will seem insignificant if your estate incurs thousands of dollars in legal fees to settle disputes or clarify your wishes. Although lawyers can and do make drafting errors from time to time, they also have malpractice insurance to cover the cost of mistakes that may occur. This is important protection — and something your estate won’t have if you make a will yourself.
An improperly drafted will can cost your estate in a few ways including:
- Your intended beneficiaries may not be the ones who inherit your assets.
- Even if your intended beneficiaries eventually get what you intended, the legal costs to your estate can be thousands of dollars – money your beneficiaries won’t receive.
- Your estate assets can be tied up for years in litigation before they are distributed to their eventual owners.
If you are looking for an estate lawyer, consider:
- Asking a lawyer you have used for other legal work if they handle wills. If they don’t, they can likely refer you to someone who does.
- Having a friend or family member recommend a lawyer they were happy with for their will. Your insurance agent, accountant or financial adviser may be able to recommend a lawyer who they know and trust.
- Contacting the Law Society Referral Service. In Ontario, call the Law Society Referral Service at 1-800-268-8326. They will provide you with the name of a lawyer who does wills. The lawyer will provide a free consultation for up to 30 minutes.
For more information about wills in Ontario visit Steps to Justice.
What does mental capacity mean when making your will?
Your will could be challenged if someone thinks you lacked the necessary mental capacity to create it. Mental capacity means whether a person has the necessary cognitive abilities to create a valid will. To have a valid will, you must understand:
- The nature of the act of making a will and its effects.
- Your assets and liabilities (i.e., the extent of the property being disposed of).
- An appreciation of the claims of people who would normally expect to benefit under the will.
Age, in and of itself, does not mean someone is not capable of making decisions about their property. Ontario’s Substitute Decisions Act provides that everyone aged 18 or older is presumed capable of making decisions about their property. Someone aged 100 is presumed as capable as someone aged 20. However, such a presumption may be challenged.
*Please note the above is for information purposes only and does not constitute legal advice.
It is best to prepare a will before it may become questionable whether you have sufficient mental capacity to do so. This could be due to physical illness or conditions that can impair your cognitive abilities, such as dementia or Alzheimer’s disease.
It can be helpful to have a third party prepare notes about your cognitive abilities at the time you provide instructions and sign the will (especially someone who is not a beneficiary under the will). For example, a doctor can prepare notes about your physical health and mental capacity. These notes may help prove that you were mentally fit to make a will if it is later challenged. A lawyer’s professional obligations also require them to ensure that their client has the necessary capacity to give instructions on their testamentary intentions and execute a will.
A person can become legally incapable of making a will at any time. Conditions that strike early in life or catastrophic childhood accidents can deprive a person of capacity before they turn 18. In these cases, their property will be treated as an estate without a will. Guardians for property in Ontario cannot make a will on behalf of the person whose property they manage.
Summary
A will is a formal document that describes how you would like your assets distributed after your death. Having an up to date will is important because:
- It ensures your estate is distributed as you intend.
- If you die without a valid will, your estate will be distributed according to provincial laws.
- Includes the name of an executor who is responsible for administering your estate according to the terms of your will.
Keep in mind:
- A person must be considered mentally capable in order for their will to be valid.
- Hiring a lawyer to draft your will can ensure you’ve considered all aspects of your estate.