By Veeno Dewan
Understanding the Purpose of a Will
A will is a formal written and signed document, almost always on paper, that legally instructs those you leave behind—such as a spouse, children, dependents, and other family members—about who will inherit the assets you owned at the time of your death, including property, cash, financial assets, and other material goods. If you have minor children, you can also specify who you would like to be their guardian to care for them in your absence. A will can also include other instructions, such as your funeral arrangements and specific requests. Additionally, a will allows you to appoint a person called an “Executor” to manage your estate and carry out your instructions for your funeral and other matters. Essentially, a will provides peace of mind and financial security for your family during difficult times.
If you die without a Will in Canada, the court will decide how your assets are distributed based on provincial or territorial intestacy laws, not the wishes of the family members you leave behind. The court will only recognize close blood relatives or adopted relatives as family members. There is no provision for non-relatives such as friends, charities, or other specific individuals without a Will.
How to make a will
You can write your own will or create an online will without legal help. However, your estate and asset situation is complicated. In that case, most people choose to hire the services of a registered and licensed lawyer, solicitor, or notary public who can assist you in creating your will for a fee. Copies of wills can be stored at their offices. A copy should also be kept in a secure place, such as a safety deposit box, a fireproof home safe, or with a trusted friend or family member. Make sure to inform your appointed executor and other family members of the location where your will is stored.
Creating a will isn’t a one-time event. When you gain new assets, like additional property, or go through major life changes, such as a divorce or remarriage, you should update your will to reflect these changes. You can also change your will at any time. Some people may prefer to draft their own wills using online forms and tools. Although there is no requirement to register an online will in Canada, you must follow your province’s specific signing and witnessing rules to make it legally valid.
Why should you have a will?
Suppose you die without a Will under Canadian law. In that case, you’re considered to have died “intestate,” meaning there are no detailed instructions on how to distribute your property and assets. When this occurs, each Canadian province or territory has its own court rules for administering the estate and distributing assets. This process can often be lengthy, complex, and costly. It can also be stressful, litigious, and exhausting for family members. Additionally, there could be issues accessing accounts, transferring or selling assets, and settling the estate without a Will.
What happens without a will can be a complicated and challenging experience for family members left behind. There is a risk of disagreements among family members because the court’s intestacy laws’ final decisions might seem unfair to some about who inherits what.
The Implications of not leaving a Will in Canada.
Suppose you die without a Will in Canada. In that case, the court will decide how your assets are distributed based on provincial or territorial intestate laws, not the wishes of the family members you leave behind. A court-appointed administrator will work with a family-appointed legal representative (usually a lawyer or solicitor) to ensure that all your documents are prepared and properly witnessed and will manage your estate instead of your chosen executor. The court will determine how the estate is divided according to the specific provincial or territorial laws of intestate succession, which usually recognize only close blood relatives or adopted relatives. There is generally no provision for non-relatives, such as friends, charities, or other specific individuals, to inherit anything.
As the court determines the distribution of assets without a Will, the final outcome on who receives what may not meet the expectations of certain family members. The ultimate asset distribution under intestate laws can result in outcomes that some individuals might consider unfair or unsuitable for the family.
Disputed outcomes cause higher costs, delays, and potential legal battles for your loved ones, often leading to bitter, long-lasting court cases. Without a Will, the process can become complicated and difficult for those left behind.
What is probate?
Probate is the court process used to officially approve a Will as the final valid document of a deceased person. It officially confirms the appointment of someone to serve as the executor of the will. Not all Wills need probate. However, most financial institutions and land registry offices generally require probate to verify that the executor is authorized to manage the deceased person’s assets and distribute the inheritance. Assets without a will are all subject to Court Probate. Once a Grant of Probate is issued, financial institutions and others can trust it to confirm they are dealing with the right person and a verified document. Finally, if there is a challenge to the will or other legal issues, probate provides the court-validated authority required to handle those concerns that may come up later.
Advantages – Better early than never to make a Will
The benefits of creating a Will are numerous. A professionally drafted Will can prevent disputes among family members and make settling your estate easier, avoiding unnecessary legal issues and financial burdens, and saving time during the final distribution of assets. A Will also minimizes legal complications, paperwork, and costs, while providing a clear, predefined outcome as the deceased intended.
In summary, dying without a Will means losing control over your most important financial and personal decisions, leaving your loved ones to face uncertainty and additional complications during already difficult times. It is never too late to create a Will. Having a Will ultimately provides peace of mind for you and your family. Knowing your affairs are in order, and that your loved ones are protected and provided for, is priceless and offers significant reassurance for both you and your family as you go about daily life. It’s definitely better to make a Will early rather than never.
Sources – Government of Canada, Estate and Will Planning; Government of British Columbia, Wills and Estate Planning; Indigenous Services Canada; B.C. Notary Association. Disclaimer: This article is for informational purposes only. Before drafting a Will, it is recommended to seek legal advice from a registered professional, as provincial laws and regulations may change.
