Creating a Legally Binding Will in Canada
Why is a will necessary?
If you possess anything of significance – be it savings, investments, property, sentimental items, or even dependants like children or pets – it is imperative to have a will. Without one, the distribution of your possessions and assets will be determined by the courts based on the estate laws in your province, and you will have no influence over who will care for your dependants, furry or otherwise.
There are several methods to create a legally binding will. You can engage the services of an estate lawyer, utilize an online or printed will kit, or even draft one by hand, depending on the region. However, each approach has its advantages and disadvantages, and it is crucial to be aware of certain aspects and potential pitfalls.
What constitutes a will?
A last will and testament is a legally binding document that designates the individuals (known as beneficiaries) who will inherit your assets upon your demise. It specifies the recipients of your belongings and assets. In cases where there are minor children involved, a will also identifies their guardians in the unfortunate event that both parents pass away simultaneously. Additionally, it must nominate an executor who will handle the settlement of your estate in accordance with the stipulations outlined in your will.
When should I establish a will?
Any adult can create a will regardless of their age, although many of us postpone this task due to our reluctance to confront the concept of mortality. The 2019 Canadian Financial Capability Survey reveals that only 22 percent of Canadians under the age of 35 have a will. While a significant majority (95 percent) of Canadians aged 65 and above possess a will, more than half (53 percent) have not updated it in the past five years, signifying that their wishes may no longer be accurately represented. It is essential to revise your will whenever you go through significant life events such as marriage, divorce, parenthood or grandparenthood, or the acquisition of real estate properties like a home.
What are the responsibilities of an executor?
An executor, also known as an estate representative, estate trustee, or liquidator, is responsible for executing the instructions specified in your will to conclude the affairs of your estate. This role primarily involves administrative duties such as liaising with financial institutions, insurance companies, government agencies, and tax authorities. Additionally, the executor communicates with the beneficiaries and family members of the deceased individual.
Choosing an executor for your estate can be a complex and time-consuming task. To simplify the process, Stephen Hsai, a Vancouver lawyer who specializes in estate planning, recommends following the "three T" rule. The ideal executor should be someone you trust, who has the necessary time to fulfill the duties, and who resides in the same territory as you.
One key issue with appointing a non-resident executor is that it may result in the tax authorities considering your estate as non-resident, which can have negative tax implications. This includes the potential loss of preferential tax treatments for capital gains and dividends.
If you don't have a family member or friend who is suitable or willing to be your executor, you may want to consider hiring a corporate executor or trust company. This can be particularly beneficial if you have a complex or sizable estate. By doing so, you can spare your loved ones from the potential burdens involved in executing an estate.
Regardless of whether the executor is a professional or not, they are entitled to be compensated for their services. While the will may not specify the amount of compensation, it's important for beneficiaries to keep this in mind. The fees for executors can vary, and there are instances where an executor may not charge a fee at all. However, each province has a limit on allowable fees, usually around 5% of the estate's value. This means that the cost to the estate, in the end, could be similar, whether you choose a professional or non-professional executor.
Types of Wills:
In addition to a last will and testament, it's also important to have a living will. A living will, also known as a personal directive, outlines your wishes in cases where you are incapacitated and unable to make decisions about your personal care or finances. It includes details about the type of medical treatments you would like to receive, who should take care of your children, and the individuals who have the legal authority to make financial and health decisions on your behalf.
Living wills and powers of attorney are only effective during your lifetime and cease upon your death. On the other hand, a last will and testament only comes into effect after your death.
What should a will cover?
A will primarily focuses on the "who" and "how" of your estate, rather than the specific assets themselves. It should include the names of your executor, guardians for your minor children, beneficiaries, and how you want your estate distributed among them. There's no need to list individual assets unless there are particular items you wish to gift to specific beneficiaries, such as family heirlooms or artwork.
When you pass away, most of your assets automatically become part of your estate. After settling all debts and income taxes, the remaining assets will be distributed to your beneficiaries. While you can create a separate document with details about your assets, liabilities, account numbers, and passwords to assist your executor, this document would be part of a broader estate plan and not considered a legal will.
Strategies to Minimize Taxes When Confronting the End
It should be noted that certain assets, such as a house owned jointly with a spouse using joint tenancy, do not fall under the estate and are instead transferred directly to the other owner. Similarly, registered accounts that have designated beneficiaries are not included in the estate. This informative guide by Rob Carrick on designating beneficiaries for your TFSA, RRSP or RRIF provides further details.
These distinctions are significant because only assets within the estate are subject to administrative taxes, referred to as probate fees. These fees vary by province, but with the assistance of a lawyer or financial planner, it is possible to develop an estate plan that considers factors like joint tenancy or beneficiaries named on registered accounts, thereby minimizing probate fees and income taxes owed on the estate upon death.
So, what distinguishes a will from an estate plan?
While a will forms a crucial part of an estate plan, it represents only one aspect. An estate plan can also encompass powers of attorney, living wills, trusts, life insurance, preferences for funeral arrangements, a comprehensive statement of assets and liabilities (including digital assets and crypto keys), and advanced tax planning strategies to minimize taxes upon death.
Indeed, estate planning can become complex in various scenarios, such as when assets are held outside of Canada. According to accountant, financial planner, and regular Globe and Mail contributor Tim Cestnick, different tax systems across jurisdictions can lead to conflicts and complications. Cestnick clarifies that Canada does not impose estate taxes, but rather income taxes. Upon death, individuals are considered to have disposed of most of their assets, potentially resulting in capital gains taxes if certain assets have appreciated. It is common for individuals to face income taxes in Canada, as well as estate taxes in another country on the same assets, without any relief for double or triple taxation.
In such cases, seeking advice from a tax lawyer, accountant, or trust and estate practitioner is recommended to explore estate planning options that prevent unnecessary tax payments.
Is it possible to write your own will in Canada?
Surprisingly, in all Canadian provinces and territories except British Columbia and Prince Edward Island, individuals can draft a valid will by hand, using pen and paper. A handwritten will, also known as a holographic will, must be entirely in the individual's own handwriting and must include their original signature. It is important to note that typing the will or using a computer is not acceptable.
Are online will kits legal in Canada?
Although a handwritten will is legally binding in most provinces, individuals who prefer some guidance may find pre-printed or online will kits useful. These kits handle the complex legal language, leaving individuals to add their personal details. Throughout Canada, will kits are considered legal as long as they meet the following criteria:
- The will is presented in paper form and contains your original signature. Digital documents and signatures are not acceptable. Therefore, if you choose to use an online will service, you must print out the final will and sign it manually. (Please note that in British Columbia, there is an exception to this rule, as the legislation has recently been amended to allow the use of digital signatures through platforms like DocuSign, and the will can be in a digital format instead of paper.)
- Two impartial witnesses were present when you signed the will, and they also signed the document. These witnesses must not be related to you or named in your will.
- You were of legal age (according to the majority age in your province) and mentally competent at the time of writing the will.
Is it necessary to hire a lawyer for making a will in Canada?The answer is no. It is not mandatory to seek the assistance of a lawyer to create a will; you can do it on your own, as explained above. However, a more important question to consider is whether you should still consider hiring a lawyer.
If you have a complex estate, such as being a business owner or having multiple real estate properties, or if your family situation is intricate, like having a blended family from previous marriages or if one of your beneficiaries has a mental disability, it is advisable to engage the services of an estate lawyer. These situations are not easily addressed by standard will kits, which are primarily designed for simple and uncomplicated estates.
What is the cost of making a will?The cost depends on the approach you choose.
- If you decide to hire a lawyer, you will receive professional guidance, but the cost will range from a minimum of 0 to several thousand dollars for complex estates.
- Online will kits are becoming increasingly popular among those seeking a straightforward will. After determining the executor, beneficiaries, and guardians for minors (if applicable), the online service will lead you through a user-friendly step-by-step process. The entire process takes about 20 minutes. However, to make the will legally binding (except in B.C.), you must print out the document and sign it in the presence of two impartial witnesses, who must also sign it.
There are several providers in Canada offering online will kits with costs ranging from around $40 to $139 for a basic will. Some packages may also include powers of attorney. Additionally, certain services allow you to make changes to the will at any time without any additional cost; however, you will need to print, sign, and have witnesses sign it again.
- Another option is to use a pre-printed will kit. These kits are similar to online will kits but in a pre-printed format where you fill in the necessary details. It is important to note that updating this type of will is not feasible, as you would need to start from scratch with a new kit. As with other options, you and two witnesses must sign the document for it to be legally binding. The cost of a pre-printed will kit is below $40.
- An even simpler and cost-free option is to write the will by hand, requiring nothing more than pen and paper.
Regardless of the option chosen, it is crucial to securely store the original signed copy of the will and inform the executor of its location for retrieval after your passing. You can also register the will and its whereabouts on CanadaWillRegistry.org, which can assist the executor in finding the original will in case they forget where it is or if you fail to inform them. Some online services and lawyers may cover the $40 registry fee.
Four methods for creating a will in Canada
What happens if someone in Canada passes away without a will?Some individuals believe that if they die without a will, known as dying intestate, their estate will automatically go to their spouse, children, or closest relatives. However, whether or not this is true depends on the legislation in the respective provincial jurisdiction. In reality, the courts must determine the distribution of assets and their proportions.
In order to add complexity, the regulations differ significantly across various jurisdictions. For instance, certain provinces stipulate that if a person dies without a will, a common-law partner can inherit a substantial portion, or even the entirety, of the estate. However, in other provinces, including Ontario, a common-law partner has no entitlement to any assets.
This process of decision-making, carried out by the courts, is time-consuming and costly. As a result, it diminishes the overall value of the estate and delays the distribution of assets to loved ones. Additionally, it's important to note that the court will appoint guardians for any minor children, which may not align with your desired choice.
How does a will differ from a life insurance policy?A will and a life insurance policy, while both components of an estate plan, serve distinct purposes.
A life insurance policy provides beneficiaries with a tax-free lump sum upon your death. Generally, life insurance safeguards your dependants, such as a spouse or minor children, from financial hardship in the event of your untimely passing. It ensures that they can continue to meet living expenses, settle mortgage payments, and save for important milestones like retirement or their children's education. Additionally, life insurance can cover funeral expenses, which can be quite substantial.
Since the death benefit from life insurance is tax-free, some individuals use it as a tax-efficient means to pass on wealth to future generations. Moreover, by directly transferring the death benefit to the named beneficiaries instead of it being part of the deceased's estate, probate fees can be avoided. However, it's crucial to carefully consider the increasing costs of life insurance as you age and weigh them against potential tax advantages.
For those who don't have dependants but worry about burdening their family or others with funeral expenses, prearranging and paying for these arrangements in advance is likely a more cost-effective alternative to life insurance.
Where can you access online will services?Here is a list of popular online will services available in Canada:
- Provides wills, powers of attorney, and living wills;
- Clients can also compile a comprehensive list of assets and specify funeral or burial preferences;
- Available for non-complex estates in Alberta, British Columbia, Manitoba, New Brunswick, Nova Scotia, Ontario, Quebec, and Saskatchewan.
Cost: for an individual will; $189 for a will, power of attorney, and living will (or $329 per couple). All updates are free.
- Offers basic wills and powers of attorney;
- Serves clients in British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Nova Scotia, New Brunswick, and Prince Edward Island.
Cost: $139 for an individual will ($229 per couple); $179 for a will and power of attorney ($289 per couple).
- Provides wills, powers of attorney, and living wills;
- Offers separate pet wills to ensure the care of your pets;
- Serves clients across Canada.
Cost: $59 for an individual will; $39 each for power of attorney and living will; $59 for a pet will. Additionally, for an extra fee ($149 to $249), you have the option to have a lawyer review your will, power of attorney, or living will. You can also subscribe to a bonus option during purchase that allows for future updates to your will.
- Provides wills, powers of attorney, and living wills;
- Offers a "life locker" where you can store personal information, including a list of belongings, digital assets, and important contacts, to be passed on to your family and executor.
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