What is a will?

When many people think of wills, they think of wealth. They think of rich families seeking to distribute big inheritances. In reality, though, anyone can benefit from having a will. And it’s probably better for your family that you do have one in place. We’ll show you why in this article.

But first, the basics:

What is a will?

A will, or a “last will and testament” is a legal document that provides instructions about what to do with a deceased person’s estate when they die.

A will lets you decide how your estate — meaning your personal property, land, heirlooms, financial assets, and liabilities — will be distributed after your death. In other words, who will receive what.

A will can also include other instructions, such as legal guardians for minor children or other financial dependents, as well as what kind of funeral arrangements you want. The person who creates a will is also known as a “testator” and the person who carries out the will is known as an “executor” or personal representative.

Types of wills

In Canada, there are two main types of wills:

• Formal
  This type of will is written by the testator and signed in the presence of witnesses who meet certain legal requirements. Formal wills are the most common type of will. They are also known as a testamentary will or attested will. Formal wills come in many different forms, such as joint wills between two people, notarial wills that must be witnessed by a notary public, living wills for end-of-life care, and more.
• Holographic
  These are both handwritten and signed by the testator themself. No witnesses are required. However, some provinces in Canada do not accept holographic wills, so it’s recommended that you create a formal will instead.

What is the purpose of a will?

The purpose of a will is to ensure that your entire estate is distributed as you see fit, from high-value jewelry to real estate properties you own and everything in between.

Your will can make sure your dependents are cared for by people you trust. This is especially helpful for domestic partners or people in common-law relationships. Unlike a married person, common law spouses sometimes have difficulty being legally recognized as their partner’s next of kin. A will can help someone make sure their life partner is taken care of beyond their death.

A will can also outline how any financial affairs you leave behind are taken care of, like outstanding debt/loans, funeral costs, and more. It essentially gives you some control over what happens when you’re gone. That’s why it’s an important part of estate planning.

Despite this, many people do not have wills: 51% of Canadians reportedly have no will and testament, while just 35% have one that is up to date (Angus Reid). We know the process can seem a bit daunting, but writing a will actually doesn’t have to be complicated or expensive at all.

How do wills work?

Generally, creating a will is the easy part. It’s what comes after that can get tricky. Most wills in Canada have to go through a process called probate. During this step, a court of law has to confirm that the will is valid. And the probate process can take years even in the simplest cases. Only after probate is completed can your executor actually carry out your will, and your loved ones can inherit the assets you left to them.

Read our Guide To How Wills Work In Canada for more details.

Do I need a will?

It’s strongly recommended that all adults in Canada have a will. As we noted earlier, there can be a misconception that only rich people need things like wills or to plan their estates. But that is simply not true. Having a will makes sure that your final wishes are carried out, including funeral plans, and that any of the belongings you leave behind will be handled exactly the way you want them to. Whether it’s a fancy car, unique artwork, or an old sofa with a lot of family memories.

Trust us, family drama can get messy if there’s no set will to specify who gets what. Losing a family member is already a difficult time. You wouldn’t want your family fighting over who gets your Muskoka Lakes cottage on top of mourning you.

What happens if someone dies without a will?

When someone dies without having written a will, their estate goes into what is known as “intestacy”. In this case, the government can provide estate services to distribute assets based on local regulations, which vary from province to province. Here are some different outcomes for the estates of people who do not have a will:

1. The estate can go to family

In general, if you die without a will, your estate will be distributed to family members.  For married couples with no children, the surviving spouse will be entitled to all of the deceased’s personal property and remaining assets after tax, fees, etc. If you don’t have a spouse or children, your parent(s) will receive your estate. If you have no parents or spouse, your estate will be divided between your siblings.

2. Cases vary by province

The specific formulas for distribution of a deceased estate vary the most in cases where a person has a spouse and children. That is, it’s not typically a matter of dividing the estate equally between spouse and children — each province has its own distribution formula.

In Ontario, for example, the first $200,000 of the estate is given to the deceased’s spouse. If the estate is worth less than that, the spouse receives it all. If the deceased has one child, one-third of the remaining assets will be given to the spouse. Then, whatever is left is given to the child or divided if there were multiple children.

But in Quebec, a third of the entire estate goes to the spouse, while the remainder is split between children. If you have a spouse and parents, two-thirds go to the former, while one-third goes to the latter. And in British Columbia, the assets are broken down even further.

3. The estate can be handled by the provincial Public Guardian office

The estates of people with no living relatives (including grandchildren, nieces, nephews, cousins, etc.) are managed by a government agency, such as:

• The Office of the Public Guardian and Trustee (Ontario and Alberta)
• The Public Guardian and Trustee (British Columbia)
• The Office of the Public Guardian (the Northwest Territories)
• And similar public guardian offices in each respective province

In this case, the Office of the Public Guardian and Trustee can act as an estate representative or to oversee a deceased estate. They determine whether the deceased left behind any personal property, assets, debts, or other financial or legal affairs at the time of death. From there, the Office of the Public Guardian must manage the estate, including settling debt where possible. The probate process can be long and complicated in cases like this.

The Office of the Public Guardian and Trustee may also step in for cases where a will is being challenged. Check out the FAQ section below for more about what happens when a will is challenged.

4. It can be a combination of the above

Aside from the outcomes mentioned above, there is another, more complex outcome. “Partial intestacy” is where you have a valid will but it only distributes part of your assets or estate. In this case, your executor will be responsible for distributing any assets included in your will and according to your wishes. But any assets not covered under you will be handled by the government or public guardian via the local intestacy regulations we mentioned above.

Do you need a lawyer to write a will?

Though a will is a legal document, you do not need a lawyer to write one. But, it can be helpful to seek legal services or guidance in the process to ensure there are no errors and that everything is covered.

There are estate lawyers who actually specialize in wills and administration of estates. They handle all legal affairs related to an estate, going even beyond handling estate planning documents and writing the will to actually seeing it through probate as well. Using professional estate services can be particularly helpful if you have a complex estate with a lot of different moving parts. Or someone with a big family may consider hiring a family lawyer who specializes in this sort of thing.

But, there are alternatives to lawyers — and their legal fees. For example, you can choose to handwrite your will or opt to use a will kit or online service, such as a Willful plan. These options are typically much more affordable.

How much does it cost to have a will made in Canada?

The cost of creating a will varies significantly depending on the size and complexity of your estate and how you choose to write your will. For example, hiring a lawyer to oversee the drafting of a will cost significantly more than using a will template or writing it yourself.

The cheapest option is to write a will yourself. This type of will is called a holographic will and it must be written in your hand. Any edits must be done physically in your hand as well. While inexpensive, holographic wills come with a greater risk of error.

On the cheaper end of the spectrum, will kits can cost as little as $20. These provide a template to follow when drafting a will, but do not include any additional guidance.

There are also online will services that can help you put together a legal will for a modest price. These tend to provide additional support and take you through each step of will writing, not unlike online tax preparation services.

If you opt for a lawyer’s services in drafting a will, the costs vary, but you could easily spend upwards of $1,000. As a general rule, the more complex your estate, the more it will cost.

Does the executor of a will get paid?

It is common for an executor or joint executors to be paid for their service. Executors have a wide range of responsibilities, including organizing the deceased’s assets and accounts, applying for probate, and ultimately distributing the will-maker’s estate to beneficiaries. Giving them compensation creates an incentive for the executor to take on the role appointed to them.

How much an executor is paid is based on different factors, including the size of the estate, provincial laws, and whether the will explicitly states an amount. As the owner of a will, you can decide how much money to give the executor.

If you don’t specify an amount, the executor fee is determined by the established rules of your province of residence. If a financial institution or law firm is your executor (i.e. a professional executor), they usually decide the fee. Just as with hiring a lawyer to draft your will, hiring a professional executor can cost you more. Their fees can often exceed the standard in your province.