Get a free Annuity Quote! Visit us at www.LifeAnnuities.com or call us Toll Free 877-842-3863.
Canada Flag Friday, July 25, 2014

 

 

FAQ - CANADIAN LEGAL WILLS

All of the suggestions made in the questions asked below, and all the necessary legal clauses for most Legal Wills, are covered in the Legal Will you download and complete.

 

What is a Will?
Essentially a Will is a legal document that specifies how you wants your assets (i. e. property, money, personal affects) divided and distributed to loved ones in the event of your death. It also spells out how dependents should be provided for. A Will can also detail your wishes regarding medical treatment and funeral arrangements.

MENU: PERSONAL WEALTH

Canadian Legal Will Section

Why do I need a Will?
Creating a Will allows you, not the Courts or the government, to decide how the assets you spent your life accumulating will be divided after you're gone. While these decisions are difficult, they are important and can have a serious impact on your family. Having a Will lets you decide who will be your executor and how your dependents will be cared for so that if you something does happen to you, you will at least have the peace of mind knowing that your affairs will be taken care of.


Many people put off creating their Wills for a number of reasons. One of the biggest of those reasons is that they don't like to think about their own death or they superstitiously believe that creating this important document will somehow expedite their demise. Of course, no one wants to dwell on their own death, but sometimes individuals have to put the needs of their loved ones over their own. In addition, once a Will is in place, it alleviates much of the stress and worry individuals have about dying because they know the people they love will be taken care of. Also, there is no reason to believe that writing a Will shortens your life.

 

Other people don't create Wills because they don't feel they have anything valuable enough to leave to their loved ones. Rarely is that the case. Your assets do not just include major property, such as cars or homes. They also include your furniture, your personal belongings, your keepsakes, your family heirlooms, your clothes, your chequing account, etc. If you took a few minutes to look around, you'd probably be surprised by how much you do have to leave.

 

Anyway, the idea of a Will is not to grant huge gifts to loved ones but to provide them with guidelines on how to deal with what you have left behind.

Another popular excuse is that Wills are too complicated and expensive to create. Again, this is not the case. You no longer need a lawyer to help you put your final wishes down on paper. You can easily do it yourself for as little as $37.

 

Finally, some people claim they already have a Will, but it's several years old. Very few people can have only one version of their Wills to last them their entire lifetime. Circumstances and relationships change over time; the Will must change as well or it becomes a useless document that will cause more problems than it solves in the long run.


What Do I Need to Know Before I Write My Will?
The first thing you should become familiar with are a few key terms that you need to understand as you create your will. These terms and their definitions are below:

 

  • Will: A legal document which specifies how a person's assets are to be distributed after his or her death.

  • Testament: Also known as a Will

  • Testator: The person who has made the Will.

  • Beneficiary: One of the individuals named in the Will who will receive a part of the Testator's estate.

  • Legacy: A piece of property left to a beneficiary

  • Executor: A person named in the Will by the testator who is responsible for carrying out the deceased's wishes

Now that you understand these terms, the next step you need to take is to determine the approximate value of your assets. Remember that your assets include property, vehicles, furniture, cash, investments, personal belongings, etc. You'll want to be as comprehensive as possible. Once you have the amount of your assets, you'll need to deduct your debts. The remaining number tells you the value of your estate.

Now you will need to decide who you wish to receive which assets. Keep in mind your current relationships as you make these decisions. You may want to make a list of everyone to whom you want to make a gift, then decide what each will receive. This is also the time to note any charitable donations you want to have made in your Will.

After you've completed these steps, you are ready to begin writing your Will.


What are the basic components of a Will?

 

There are three main parts of a will. These parts are as follows:

  • Identifying the Testator
  • Appointing the Executor and an alternative choice who will take on the responsibility if the first declines
  • Naming the beneficiaries and their legacies

You may also want to include predeceasing clauses which specify what will happen to a beneficiary's legacy in the event that he or she dies before the Testator. Another possible addition would be a Residual Clause which explains how to deal with any assets not included in the will.


Can I write my own Will?

 

Yes, you can. While individuals with large estates may need the assistance of an attorney, the average person can create their own will relatively easily. We can help you write your own Will. For the form, click here.


Who should I select to be my executor?

 

An executor is, of course, the person(s) responsible for making sure your last wishes are carried out. In some cases, this might be your attorney. However, you do not need a legal professional. You could choose your spouse, your children, a close friend, etc. The most important thing is that you select someone who you trust and who will be in your life for the long-term. Also, you should take into the account the individual's health and age. Parents and grandparents, for example, would make unwise choices since they are more likely to die before you.

 

Before you complete the Will form, you may want to discuss the responsibility with the person whom you have chosen as executor. He or she has the right to decline the task. If you've already prepared the Will, and your executor declines, you will need to rewrite and choose someone else for the job. After you die, the executor can still choose to decline the responsibility if he or she has not yet undertaken the required duties. For that reason, it is often advisable to select more than one executor. Then, if the first declines, the second executor can take over.

 

No matter whom you select, the executor is entitled to reimbursed for the expenses he or she incurs while completing the task. In addition, you may also wish to add some type of renumeration in your Will for the executor to thank them for handling the matter on your behalf.

Just as with your beneficiaries, be sure to clearly identify your executor(s) in your Will. You should include their full name, occupation, and full address so they are easier to locate when the time comes.


Who should I choose to witness the Will?

 

Your witness can be any adult who is not included in your Will as a beneficiary or as an executor. The reason for this is that, in the event of a dispute, the courts may find that the witness was able to influence your final wishes.

Before an individual agrees to witness your Will, he or she needs to be aware that they may be called upon to appear in Court if there is a question about the validity of the Will. For this reason, you should select potential witnesses who are likely to remain in your life for the long-term and who would be fairly easy to track down if it became necessary.


Can I include health care decisions in my Will?

 

Absolutely. As long as you are physically and mentally able to make decisions about your medical treatment, care facility admission, and personal assistant services you can include them in your Will.

 

When you are making these decisions, you need to consider realistically what types of long-term treatments you would consent to. For example, if you were unable to breathe on your own, would you want to use a ventilator? Obviously, you won't be able to predict the future, and you won't know what circumstances you may one day find yourself in, so you will also need to appoint someone you trust, other than your family physician, to make sure your wishes are carried out and to make decisions for you which may not be covered in your Will. If you want, you can even appoint more than one person to handle this responsibility.

 

In this case, you will also need to specify whether the individuals you appoint must act jointly or if they can make personal care and medical decisions for you independently of one another.


What happens to assets that I don't include specifically in my Will?

 

There are two possibilities. Any assets that you do not give away or distribute through your will may be divided up according to the laws of intestacy. These laws vary depending on where you live, but they clearly specify who will inherit your remaining assets.

 

If you don't want that to happen, then you need to include a Residual Clause in your will. This clause basically specifies who will receive any of the remaining assets or any assets you were to give away to a beneficiary who died before you. Additionally, any assets that you purchased after the Will was written, will be distributed according to the Residual Clause.


What happens if I get married, divorced, etc.?

 

Any changes in the relationships you have with your beneficiaries need to be reflected in your Will and, in some cases, may even automatically cancel your current Will. For example, marriage causes a Will to be revoked unless the Will was written in contemplation of marriage. On the other hand, divorce does not cancel a Will; it only nullifies those sections pertaining to the former spouse. If you and your spouse are separated, however, you will need to make the necessary updates to your Will.


If you are not married but are in a long-term committed relationship, then you need to clearly specify in your Will which assets that individual will receive as well as how he or she should be supported after your death. This is especially important because unmarried partners are not necessarily entitled to the same rights as a legal spouse.

 

Changes in relationship may also affect your executor choice as well. For instance, if your spouse was to be your executor, and you divorce, then you would obviously need to select a new executor and write a new Will.

The bottom line is that any time there is a change of relationship, you should really create a new Will so there are no complications or disputes when you are no longer around to explain your wishes.


How should I deal with the beneficiaries in my Will?


Beneficiaries are the individuals you have named who will be receiving parts of your assets. You need to be clear about who is to receive what in your Will, so each beneficiary should have their full name, occupations, and full address included along with the specific item(s) that are to get from your estate. By including this information, you are also making it easy for these individuals to be located in the event of your death.

 

There are a few things to keep in mind when making gifts to beneficiaries. For one, you need to be practical. If your son lives in a no-pets allowed apartment, for example, don't give him the family dog. Likewise, if your niece has a studio apartment, don't make her the beneficiary of your king size water bed. Also, unless you have a Residual Clause in your will, you will need to update it if one of your beneficiaries dies before you. Otherwise, their share of the estate will be distributed by the laws of intestacy and not by your wishes.

 

Finally, many people wonder whether or not they should inform their beneficiaries that they have been included in their Will. It is probably a good idea to at least let them know that they are included. However, there is not necessarily any reason to tell them specifically what they will be receiving, especially since you may make changes in later versions.


Where should I store my Will?


Just as with any important legal document, you need to store your Will in a safe and secure location. Additionally, the spot you choose needs to prevent the document from being damaged by water, fire, etc. However, the location you choose should also be one that is easy to find in the event of your death. A safety deposit box at your bank or a safe in your home would be two ideal locations. In either case, you need to provide the executor with the specific location of the Will as well as the key or combination.

 

Because it is important that your executor be able to locate your Will quickly, you may want to make copies. One of these copies should be stored with your personal papers while the other should be given to your executor. Both copies should be clearly labeled "Copy;" the original does not need to be marked.


What happens if I don't make a Will?


When a person dies without a Will, he or she is said to have died intestate and their assets are then distributed based on the laws of intestacy for their region. Because these laws are based strictly on legal relationships, they do not consider how much certain relatives may have meant to the person or what emotional attachment loved ones had to specific personal belongings of the deceased. These laws also do not take into account relationships that are not recognized by law. For example, if a couple lives together but is not married, the survivor member may not receive any part of the estate.

 

Additionally, if you do not have a Will, any disputes concerning your asset's distribution will have to be resolved in the courts and the costs will be paid by your estate.


How often should I update my Will?


Your Will needs to be updated in any of the following circumstances:

  • A change in relationships occur (i. e. divorce, marriage, separation)
  • A beneficiary dies before you (unless you want those assets to be distributed according to your Will's Residual Clause)
  • Any major assets, such as a car or property, are purchased or sold
  • You or anyone else mentioned in the Will has a name change.
  • You have children or your children reach the age of majority
  • You move to a different province, state, or country
  • Your relationship with anyone mentioned in the Will changes

Even if you do not need to update your Will, you should still review it regularly (at least once per year) to be sure that no changes are necessary.


How can I cancel my Will?


Many people are not clear about how to cancel their Will. For example, some believe that a divorce cancels the entire Will. However, a divorce only cancels the sections of the Will that pertain to the former spouse, not the entire Will. Even though divorce is not one of them, there are a number of ways for you to cancel your Will, including:

 

  • Writing a new Will
  • Getting married (unless your Will was written in contemplation of marriage)
  • Destroying your Will.

If you do cancel your Will, you should write a new one immediately. Otherwise, you run the risk dying without one. In that case, the laws of intestacy will decide the division of your assets.

 

Download the Canadian Legal Will

 

Tell me more about life annuities

Life Insurance Menu

Health Insurance Menu

Investment Menu

 

The Hughes Trustco Group | Website: www.lifeannuities.com | Email: info@trustco.ca | Toll Free: 877-842-3863
Download our free Life Annuities Guide and Company Brochures at www.LifeAnnuities.com.