A will is a legal and binding document that outlines a person’s wishes regarding the distribution of their assets and property after death. Having a will is on most people’s to-do list but not always a priority. However, having a will has many advantages and is a time saver for your loved ones.

What is a Will?

A Will, formally known as a Last Will and Testament, is a legal document that outlines an individual’s wishes regarding the distribution of their assets and the care of any minor children upon death. It serves as an instrument in estate planning, enabling individuals to exercise control over their estate’s disposition, including real estate, personal property, and financial assets. The document specifies the beneficiaries—who are to receive specific portions of the estate—and appoints an executor, who is responsible for administering the estate in accordance with the decedent’s wishes.

Creating a Will involves several key components to ensure its legal validity. These typically include the clear identification of the testator (the person making the Will), a declaration that the document is intended to serve as the testator’s Will, the appointment of an executor, the identification of beneficiaries, and the distribution instructions for the assets. Additionally, most jurisdictions require that the Will be witnessed by disinterested parties—individuals who are not beneficiaries of the Will—to confirm its authenticity and the testator’s capacity and intention at the time of its creation.

Failure to prepare a Will can lead to unintended consequences, including the distribution of assets according to the default laws of intestacy rather than the decedent’s wishes. This process often results in additional legal complications, delays in asset distribution, and, potentially, disputes among heirs. Therefore, drafting a Will is a fundamental step in estate planning, ensuring that one’s legacy is preserved and that loved ones are cared for in accordance with one’s wishes. Individuals should consult with legal professionals specializing in estate planning to create a Will that accurately reflects their desires and complies with legal standards.

What Can You Do To Plan Ahead?

While planning ahead of your death is not always fun, having a will might save time and make things easier for those who would handle your affairs. In addition, by providing clear instructions and guidance on how you want your wishes to be carried out after your death, you would also prevent potential conflict and disputes among family members or other potential beneficiaries. Here are some of the key reasons why you might consider having a will:

Distribution of Assets

A will lets you indicate how your assets will be distributed after death. Your assets include real estate, personal property, money, and investments. Your will can include instructions on specific bequests and gifts. You can also create a trust for your children and specify the conditions under which they will qualify for their inheritance and when they can access it.

Contingency Plans

You might include contingency plans in your will if a beneficiary predeceases you or cannot receive their inheritance. For example, if one of your children dies before you, you can specify in your will that their share should be divided equally among their children.

Naming an Executor

A will allows you to name an executor. An Executor is the person who will administer your estate and carry out your wishes in accordance with your instructions in the will. This can help avoid potential disagreements or disputes among family members or other interested parties.

Providing for Dependants/Minor Beneficiaries

Although nobody would ever want to think about this, it is one of the most important decisions you must make. If you have minor children or dependents, a will can outline who should care for them and how they will be financially provided. Therefore, you can ensure that they are cared for as you wish.

Potential Conflict

If you do not have a will, disagreements and disputes among family members on the distribution of your assets or the care of your children might arise. This might create emotional stress and hardship for your loved ones.

How Does Will Work?

In Ontario, the legal framework governing the creation and execution of wills is outlined in the Succession Law Reform Act (SLRA), ensuring that a person’s final wishes regarding their estate are honoured after their death. A will, by definition, is a document in which an individual, known as the testator, specifies how their assets should be distributed and to whom upon their passing. For a will to be considered valid in Ontario, it must adhere to certain criteria: it must be in writing, signed by the testator in the presence of two witnesses who are not beneficiaries or the spouse of a beneficiary, and these witnesses must also sign the will. The process involves careful planning and decision-making, including selecting beneficiaries, appointing an executor to manage the estate, and detailed instructions for the distribution of assets.

Upon the testator’s death, the executor named in the will is responsible for fulfilling its wishes. This role involves several tasks, including applying for a Certificate of Appointment of Estate Trustee (commonly known as probate) if necessary, which validates the will and the executor’s authority to administer the estate. The executor then gathers and values the estate’s assets, pays off debts and taxes, and distributes the remaining assets to the beneficiaries as specified in the will. This process ensures that the testator’s decisions regarding their estate are implemented as intended, highlighting the importance of having a well-drafted and legally sound will. Through this structured legal process, Ontario provides a clear path for individuals to secure their legacy and offer peace of mind to themselves and their loved ones.

Validity of Will

The legality of a will depends on its adherence to specific legal requirements and formalities, which can vary by jurisdiction. In Ontario, several key elements must be present for a will to be considered legal and valid:

Testator’s Legal Capacity

The person making the will (the testator) must be of legal age, typically 18 years or older, and have the mental capacity to understand the nature and implications of making a will. This includes understanding the extent of their assets and deciding how they should be distributed upon death.

Voluntary Creation

The will must be made voluntarily without any undue influence, coercion, or duress from others. The testator should act of their own free will in drafting and executing the document.

Writing

The will must be in writing. While most wills are typewritten as part of a formal process, handwritten wills, also known as “holographic wills,” can be legal in Ontario and some other jurisdictions, provided they meet certain criteria.

Signature

The testator must sign the will. This signifies the testator’s approval and intent to give effect to the will as their own.

Witnesses

The signing of the will must be witnessed by at least two individuals who are present at the same time. These witnesses must also sign the will in the presence of the testator. Witnesses should not be beneficiaries of the will or the spouse of a beneficiary, as this could void the gifts made to those beneficiaries under the will, depending on the jurisdiction.

What Happens If You Die without a Will?

If you pass away without a will in Ontario, it means you died “intestate”. If you die intestate, the provincial laws will apply to decide on the distribution of your assets and appoint an executor and guardians for your minor children (if applicable). You cannot choose your estate’s beneficiaries if you die intestate. In Ontario, the Succession Law Reform Act dictates the rules on the distribution of your assets, and it might not reflect your wishes and the needs of your loved ones.

You can outline specific instructions on all these points and even more, such as what type of funeral you would like and what you want to be done with your body. Not having instructions on these matters or not having a will at all might cause delays in wrapping everything up.

Your loved ones would likely be shocked to see how much money, time and effort it requires before your estate can be distributed. Estate planning covers a significant part of what will happen after your death. It might avoid any possible delays in the distribution of your assets and the access of your loved ones to their inheritance in the manner you desire.

Even though having a will is not obligatory, it is crucial to have it because a will would be an effective means of communication for your desires to be declared after your death instead of leaving the responsibility to the courts to decide on how your estate will be managed and how the care of your children will be arranged.

Here’s what happens if you die without a will:

Estate Distribution Based on Intestacy Laws

Your assets will be distributed according to the predetermined formula in the Succession Law Reform Act. This usually prioritizes spouses and direct descendants (children, grandchildren) but can extend to other relatives if no closer kin are found. The distribution scheme may not reflect your personal relationships or preferences.

No Personal Choice in Estate Administrator

The court will appoint an estate administrator without a will to designate an executor. This person might not be the person you would have chosen to manage your affairs. Appointing an administrator can also be time-consuming and costly, potentially delaying the distribution of your estate.

Potential for Increased Family Conflict

The absence of clear instructions can lead to disputes among family members regarding asset distribution. These conflicts can be emotionally and financially draining and may lead to permanent rifts within the family.

Guardianship of Minor Children

If you have minor children and have not specified a guardian in a will, the court will decide who will assume this responsibility. This decision might not reflect your preference for your children’s care and upbringing.

Complications for Unmarried Partners

Common-law partners may not be recognized as beneficiaries under intestacy laws, which could result in significant financial and emotional hardship for the surviving partner.

Missed Opportunities for Tax Planning

Without the opportunity to structure your estate in a tax-efficient manner through a will, your estate might incur higher taxes, reducing the amount passed on to your heirs.

Charitable Intentions Ignored

Without a will, there’s no provision for charitable donations, meaning any wishes you had to support charities or causes will not be realized.

Legal and Administrative Costs

The estate may incur additional legal and administrative costs to settle your affairs without a will, diminishing the estate’s value left for your heirs.

Can I Change My Will? How?

The simple answer is YES. You can update, revoke, or change your will as long as you are mentally capable. You can change your will by making a new one or a codicil, a separate document.

Making Changes to Your Will

If you only need to make minor adjustments to your Will, you can create a formal document known as a “codicil.” However, crossing out certain parts of your Will and inserting new changes is not always acceptable, and it is generally not considered legally valid.

A codicil is a formal amendment to your Will that cancels or modifies certain parts or adds new provisions. It must reference your original Will and clearly state the changes you wish to make. Like a Will, a codicil must be prepared properly.

You might prepare a codicil on your own or consult a lawyer since, just like the Will, it has certain formal requirements to be legally valid and enforceable (date, witnesses, etc.).

There is no limit on the number of codicils you can have. But if you need to make many changes or major changes to your Will, you might consider drafting a new one to avoid any potential future confusion due to multiple documents. By drafting a new will, you can eliminate the risk of misplacing or misinterpreting any additional sheets that might be added to your previous will.

Review Your Current Will

It is important to review it and identify the changes you want to make before you change your current will. This can include changing the distribution of assets, updating the names of beneficiaries, or appointing a new executor. Also, be aware that your changes might have potential tax implications.  

When Should I Make Changes to My Will?

There is no time frame or specific reason for changing your will, and it is common to update it as you go through different stages in life. For instance, many people choose to change their will after getting married, divorced or having children. As your children grow older or there are new additions to the family, you might want to modify their designation in your will. In addition, you might want to update your will if your executor becomes unable to act as your agent (especially if there is no contingency plan in your current will)

You might want to review your will every couple of years to ensure your will aligns with your current wishes and circumstances, even if you believe your situation has not changed.

Importance of Having a Will

The importance of having a will extends beyond the mere distribution of one’s assets after death; it embodies a comprehensive approach to estate planning that offers numerous benefits for the individual and their loved ones. Here are several key reasons why having a will is crucial:

Ensures Your Wishes Are Honored

A will provides a legal blueprint for distributing your assets according to your wishes. Without a will, your estate may be distributed according to the default laws of intestacy, which might not align with your personal preferences or family dynamics.

Protects Beneficiaries

By specifying beneficiaries in your will, you can ensure that your assets are transferred to the people or organizations you care most about. This is particularly important for protecting minors, dependents with special needs, or beneficiaries requiring special consideration.

Minimizes Family Conflict

An articulated will help prevent disputes among family members by providing clear instructions on dividing assets. This can be especially valuable in blended families or situations with disagreements about inheritance.

Facilitates Efficient Estate Administration

Naming an executor in your will to administer your estate can streamline the process, making it easier and faster for your assets to be distributed to your beneficiaries. This can also reduce the administrative burden on your loved ones during a difficult time.

Enables Tax Planning

A well-considered will can include strategies for minimizing estate taxes or probate fees, thereby maximizing the value of the inheritance passed on to your beneficiaries. Through careful planning, you can save significant money that would otherwise go to taxes.

Provides for Minor Children

A will allows you to make arrangements for the care and guardianship of minor children should you pass away while they are still young. Without such directives, the decision may be left to the courts, which might not align with your parenting wishes.

Supports Philanthropic Goals

For those inclined toward philanthropy, a will is a powerful tool for supporting charitable causes, allowing you to leave a lasting legacy to organizations or causes you are passionate about.

Offers Peace of Mind

Perhaps one of the most significant benefits of having a will is the peace of mind it provides, knowing that your affairs are in order and that you have taken steps to make things as straightforward as possible for your loved ones after you are gone.

Types of Wills

Wills come in various forms, each tailored to different circumstances and legal requirements. Understanding the different types of wills can help individuals choose the most appropriate one. Here’s an overview of the main types of wills:

Simple Will

A Simple Will is a document outlining how a person’s assets should be distributed after death. It typically includes the appointment of an executor, beneficiaries, and, if applicable, guardians for minor children. Simple wills are best suited for individuals with uncomplicated estate planning needs.

Testamentary Trust Will

This type creates one or more trusts upon the testator’s death. It is useful for individuals who wish to have their assets managed by a trustee to benefit the beneficiaries, which can be especially beneficial for minors or those unable to manage their inheritance.

Joint Will

A single document created by two or more individuals (usually married couples) that outlines how their assets should be distributed after they both pass away. While joint wills can simplify estate planning, they could be more flexible since changes cannot be made after the first testator dies, which can pose complications.

Mutual Wills

Like joint wills, mutual wills are separate but complementary documents created by two or more individuals (often spouses) who agree on how their assets should be distributed. Unlike joint wills, each party in a mutual will agreement can change their will during their lifetime; however, they cannot change it after the other party’s death.

Multiple Wills

Multiple wills can govern different parts of their estate, often in response to specific legal or tax advantages. This strategy is particularly prevalent in jurisdictions where certain assets may be subject to probate, and others are not, allowing for a more efficient administration of the estate and potentially significant savings on probate fees or taxes. The common use of multiple wills includes:

• Primary Will: This will typically cover assets requiring transfer of probate. It is submitted to the court for probate.
• Secondary Will (or Wills): These wills govern assets that can be transferred without probate, such as private company shares or personal effects. Secondary wills are not submitted for probate, avoiding the associated fees for those assets.

Using multiple wills can complicate estate planning and administration, so it’s vital to delineate the assets each will cover and ensure no contradictions or overlaps could lead to legal challenges.

Mirror Wills

Mirror Wills are two separate wills that are practically identical. They are typically used by married couples or long-term partners who wish to leave their assets to each other upon the first death and then to other beneficiaries (often their children) upon the second death. Each partner has their own will, but the contents mirror the other’s, including:

• Appointing each other as the primary beneficiary.
• Naming the same secondary beneficiaries, usually in the same proportions.
• Appointing the same guardians for minor children, if applicable.
• Naming the same executors.

While Mirror Wills offer the convenience of symmetrical estate planning for couples with similar wishes, they allow for flexibility since each partner can independently alter their will if circumstances change (unlike Joint Wills, which are binding on both parties once one has passed away).

Living Will

Also known as an advance directive, a living will is not a will in the traditional sense. Instead, it’s a document that outlines a person’s wishes regarding medical treatment and life support measures in the event they become incapacitated and unable to communicate their decisions.

Holographic Will

Holographic will is entirely handwritten and signed by the testator. In some jurisdictions, including Ontario, holographic wills are legally valid even without witnesses, provided they meet certain criteria. They are often used in emergencies but can pose risks due to the lack of formal witnessing and the potential for ambiguity.

Key Considerations While Choosing an Executor For Your Will

One of the most important decisions you’ll make while creating your will is who to appoint as your executor. Your executor will be responsible for carrying out your wishes in your Will and ensuring that your estate is distributed per your wishes. Therefore, choosing someone responsible, trustworthy, and capable of handling an executor’s responsibilities is essential. You might want to consider the following points while making this choice:

Understand the Role of an Executor

First, you should understand this role before considering potential executors. An executor is responsible for managing the estate’s assets, paying any outstanding debts or taxes, and distributing the estate’s assets to the beneficiaries. To perform these duties, they must communicate with family members and beneficiaries, gather all necessary documents, and protect the estate’s assets.

Consider Personal Characteristics

Choosing an executor is a very personal decision. You need to think about your dynamics with family and friends, whom you trust, who have the necessary skills, and who can handle the role’s responsibilities. Before appointing a family member or friend, you might want to consider their personal characteristics such as honesty, responsibility, and trustworthiness. Can they communicate well and manage your affairs while ensuring they follow your instructions in the Will?

Evaluate Financial Acumen

You might want to consider an executor who has good financial acumen. The executor will manage the estate’s assets and ensure that debts and taxes are paid. They might also need to make investment decisions and manage financial accounts. It’s important to choose someone with a good understanding of financial matters or who can consult with professionals to make informed decisions.

Assess Time and Availability

You might have peace of mind by choosing someone available to carry out the necessary tasks since being an executor is a time-consuming responsibility. They will need to communicate with beneficiaries, handle legal documents, and attend meetings therefore, the person you choose as an executor will need to be available to carry out these tasks. If the person you’re considering has a busy schedule or lives far away, it might not be practical to appoint them as your executor, but this depends on your personal situation.

Have a Contingency or Back Up Plan

It’s always a good idea to have a backup plan if your first choice predeceases you or you are unable or unwilling to act as your executor. You can appoint a second or third choice as your alternate attorney in your Will or choose a professional executor, such as a trust company or lawyer.

Will Storage Options

The last step in creating your will is to store it safely. This is very important to ensure your wishes are respected and carried out after passing. In this article, we will explore different methods of safe will storage and provide insights into the benefits and considerations of each option. This will help you make an informed decision about which method to choose.

Secure Home Storage

The most immediate option is secure home storage. This could mean a locked filing cabinet, a personal safe, or any secure area within your home. Home storage’s advantage is accessibility, but security risks and the potential for loss due to theft, fire, or natural disasters must be carefully considered.

Safety Deposit Boxes

Bank safety deposit boxes provide high-level security and protection from theft, fire, and flood. However, gaining access to the box after the owner’s death can be complex. The box may be sealed upon death and require a court order to be opened, which can delay the probate process. Your executor will need an extra key and a power of attorney or death certificate to access the box.

With A Lawyer

Storing your will with a lawyer or a legal firm specializing in estate planning is a common choice. Lawyers usually have secure storage facilities for important documents, ensuring legal professionals know your most recent will. This service may involve additional fees, but it provides easy and secure access to your will, and your executor will have minimal hassle.

With Your Executor

Storing your will with your executor can be a practical option to ensure that the person responsible for executing your estate can immediately access your testamentary instructions when you pass away. This approach eliminates potential delays in accessing a safety deposit box or retrieving the will from a lawyer’s office. However, it is crucial to have complete trust in your executor’s ability to keep the document safe and confidential. They should understand the responsibility to preserve the will in its original condition and protect it from damage, loss, or unauthorized access. Clear communication about the will’s location and any changes to its storage is essential.

Choosing the right storage option for your will is of utmost importance. Evaluate the benefits and risks of each option and consult a lawyer if necessary to determine the best fit for your specific circumstances. Regardless of which option you select, it is essential to inform your executor or a trusted individual of the location of your will to ensure that your final wishes are known and executed without delay.

Summary

Consulting a lawyer to create a will can provide peace of mind on all these matters. A lawyer can ensure that your will is drafted precisely according to your instructions and desires and is fully personalized to your situation.

If you are an individual seeking legal assistance in creating a will tailored to your unique circumstances and needs, contact us today to find out how we can help.

The information provided above is of a general nature and should not be considered legal advice. Every transaction or circumstance is unique, and obtaining specific legal advice is necessary to address your particular requirements. Therefore, if you have any legal questions, it is recommended that you consult with a lawyer.