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Will or Won’t?

Updated: Oct 6, 2021

More than half of all Canadians don’t have a legal Will. Dying without a Will leaves a lot of extra work and stress for your loved ones left behind. An estate is basically anything left by a deceased person that has value. If you die without a Will, you are considered to have died intestate, which essentially means "not having a Will", and your estate will be distributed to your next of kin by the government using the applicable provincial laws and process. The result may be very different to what you may have wanted. You will want to have a valid Will in place in order to decide where your assets will go, who will be Executor, and if you have kids how they will be looked after when you are gone. Dying without a Will leaves a common law spouse in a tough situation and without a right to a share of the estate, without making a legal claim towards it.

If you are in a relationship, have children, or own assets, one of the most important things you can do for your loved ones is ensure you have a solid Will and a trusted Executor. There may come a time when these decisions cannot be made by you any more, due to medical reasons or death, and by that time it is obviously too late. A Will is a legal document left by someone who is deceased, that is meant to direct your estate according to your wishes. If you haven’t done one, or more importantly haven’t done one properly, your estate could be tied up in the legal process for months. A Will often needs to go through probate. Probate is a legal process used to determine if the will or directives of a deceased person are real and valid for the province it is being administered in. The probate process will ensure all the assets are accounted for, ensure the will is executed by the appropriate jurisdictional laws, and all deceased person’s debts are taken care of before anybody else gets anything. If you don’t have a Will at all, it will take even longer, as your assets will become frozen and the goverment will then decide what is fair. A Will is a legal directive made by a competent, living person that tells your loved ones how your estate will be distributed and how any dependents will be taken care of.

There are ways to cut the costs of going through a lawyer and go with a do-it-yourself Will, but if you can afford it and have considerable assets, a lawyer is likely a better and safer route in my opinion. A lawyer will be familiar with your provincial rules, guide you through the process and your options, and they will keep a copy of your Will on file or a provincial registry for easy access and execution by your Executor. A good lawyer will also make themselves available should your executor need help with the overall process.

Doing a Will by yourself without following any standard template can have certain risks. When you hold assets in other countries or provinces it is best to get a lawyer to review your Will. They will be able to investigate and advise on any anomalies in your Will. Provincial or other country jurisdictional laws may over-rule your wishes. Just because you want your long lost cousin, first girlfriend, or your dog to get everything you own, that may not and likely won't happen. Pets are seen as property by law, so you cannot leave assets to animals (or property to property), however you can make sure they are taken care of in other ways. However, if you do not word this properly and in accordance to laws in your Will, the options you have available and the one you may have wanted won't happen. Direct family will usually have a legal claim to your assets and can contest your poor decisions in court. If you have been remarried, there may be other complications related to a past relationship regarding your responsibilities to disburse your estate. It’s not advisable to try and do a Will by yourself.

Though not necessary for the purpose of executing a Will, you can make this process less stressfull for a surviving spouse if you both set up joint ownership, and reciprocal beneficiary and power-of-attorney properly on all your financial assets. Having joint ownership and power of attorney on each others accounts means you both have the ability to take total control of these accounts in the absence of one another. This includes any accounts that may only be in a single persons name like pensions, RRSPs, RESPs, TFSAs and potentially vehicles, real estate and other assets. Making sure your shared accounts are set up with power of attorney will keep them from being frozen when a bank or other financial institution is notified of the death of an account holder. This can be a stressful situation for a surviving spouse during an already difficult time, especially if they were recieving money from those accounts to provide retirement income. Of course this only benefits a surviving spouse in the event the other dies. If you are both gone, the assets are distributed under your Will’s directives. It is a good idea for spouses to review and understand how their accounts and assets are set up for ownership, beneficiaries, and access, and if they are in each others names.

At the end of the day, a Will is a very important aspect of your financial planning and an important document for your loved ones. Ensuring your aging children or elderly parents have done this properly is something you may want to investigate and advise on as well? Having this document set up properly and reviewing it periodically with those directly involved is highly advisable. Things can change over time.

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