Planning for your Will

Creating a Will by yourself does not have to be an overwhelming and complicated process; it does not require too much effort and time on your part, if you know where to look for help.  People who want to create a Will sometimes have difficulty going through a lawyer, because they dislike the thought of discussing their personal matters with a stranger. If you do decide to create a Will, you do not want to wait and rush things to the last minute. We have found that sometimes, for those who decide to create a Will by themselves, they rush the process, and complete their Will just prior to a major event or a trip. You obviously do not want to do that; you want to take your time. 

Your Will encompasses all of your assets and your entire estate, which includes: your property, jewelry, gifts, and all of your other particulars. You may want to start with an inventory list of all of your items, and periodically look over your list to see what changes need to be added or removed to your list. You may want to type (rather than handwrite), your inventory list, to better manage any changes further down the road. When it comes to the actual creation of the Will itself, people sometimes decide to do a holographic (hand-written) Will, but that may not be a good idea for a number of reasons: 1) You may not know about everything that goes into your Will. A Will not only encompasses your assets and estate, but it also covers who you are appointing as your Executor (the person who is responsible for dispersing your assets), any gifts you want to leave behind, your beneficiaries/alternate beneficiaries (the people who are getting all of your stuff when you pass away), charitable items, guardians for your kids, a trust for your underage child, etc. Hand-writing a Will may not be a good idea for an individual who does not know much about writing a Will or what goes into it. 2) You may not know about the procedure about what happens next, after you complete your Will. How do you make your Will legally binding? In short, you most likely want a document that covers just about everything for your Will. That can all be covered through online software. There are options to create your Will through online software, such as FormalWill. It takes the guess work out of creating your Will on your own. 

You can create your Will through FormalWill in just three easy steps: 1) Create your account, 2) Enter your information into the online Will order form, and 3) Pay at the end and receive both your Will and signing instruction letter. FormalWill simplifies the entire process for you, and makes your life easier. This may be an option for you when you decide on the best way to create a Will. 

We have previously posted about the reasons as to why many put off completing a Will. One reason has to do with the fact that people are wary of discussing their personal matters with a lawyer. Many are unaware that they can, in fact, draft up a Will without a lawyer. You do not need a lawyer to create a Will for you, and if your estate and assets are straightforward, you can draft a Will yourself using online will software.

If you choose to create a Will without a lawyer, you may want to think about what goes  into your Will, including the following: a clause revoking former Wills and testaments, specification of your city/town, appointing an executor or person who will carry out the terms of your Will, appointing alternate executor(s), etc. You also want to ensure that you have a fairly good idea as to where your assets, estate, gifts, charitable donations, etc., are all going to go. In addition, you want to have a good idea as to who the potential Guardian of your underage children will be. This can be done through online Will software, without a lawyer. If you feel you require legal advice, however, you may want assistance from a lawyer.

If you choose to create a Will without a lawyer, you need to initialize and sign the document in the correct places. You may want to have two independent witnesses localized within your area to witness and sign in the document in the correct places as well. That is all you require to make your Legal Will valid, without a lawyer. Notarizing documents is a question that often arises as well; people question if they need to have their Will notarized by a lawyer. Notarization is essentially a seal or a stamp on your document, which  shows that the document is authentic. Notarization may only be necessary for a Power of Attorney and it is not necessary for a Last Will and Testament.  How are these documents different from a Last Will and Testament? A  Power of Attorney is a document that deals with your financial matters while you are alive, and a Living Will deals with your health matters while you are alive. Both documents are vastly different from a Will, which only deals with matters relating to your estate/assets AFTER your death. Unlike a Will, a Power of Attorney may require notarization, but all three documents can be created without a lawyer present. Again, if you require legal advice, you may want to seek the assistance of a lawyer.

Those are the basic items you need to know about creating a Will without a lawyer, how to make a Will valid, what notarization entails, and what the difference is between a Will, a Power of Attorney and a Living Will.

Can an Executor be the same individual appointed to be a Guardian? This is one of the main questions that often pops up when a person is creating their legal Will. First off, it’s important to distinguish between the two roles: an Executor is the person whom you appoint to disperse your assets, estate, charitable donations, handle your debts, sell off your assets, arrange for trusts, arrange funeral arrangements, and take care of all of the other duties you have listed for him/her in your legal Will. In short, the Executor (also known as a Trustee), is the person whom you have appointed in your legal Will to look after all of your stuff and to make sure that your loved ones are taken care of, with the amounts you have left behind in your estate.

A Guardian, on the other hand, is pretty much self-explanatory: this is an individual appointed by you to look after your underage children in the event of your passing. Typically, this person could be a spouse, a parent, a grandparent, a trusted relative, or a close friend. There are several questions to ask yourself about appointing a Guardian for your child(ren) in your Legal Will: Is your Guardian going to outlive you? If mom and dad aren’t the best choices, would your spouse be alright with one of your siblings as a Guardian? If you appoint someone to be a Guardian, would that offend someone else? There is a laundry list of questions to consider before picking a Guardian.

Likewise, there are many things to consider when choosing an Executor: Is this person on the same page as you about your finances should be spent? Does this person have anything to gain from your assets or your estate? Can this person handle the responsibility of being an Executor? Consider writing down the pros and cons of your choices for an Executor, and your choice for a Guardian, and decide from there.

Can a Guardian and an Executor be the same individual? While individuals do at times appoint the same person for both roles, there are a host of questions to consider when going this route. For instance, can the same individual trusted to handle the finances of your estate also be trusted to look after your child(ren) and juggle both responsibilities? Does he or she have the same outlook on managing your estate and managing your child(ren)? What does your spouse think? Does your spouse want your choice of Guardian and Executor to be the same person?

Keep in mind that an Executor (much like a Guardian) may not be suited for the role later on. That person may turn down either role, or your relationship may deteriorate later on. That is why you may want to keep your legal Will updated after a certain amount of time.  Remember that as life circumstances change, so should your legal Will.

You are no doubt familiar with the importance of having a Last Will and Testament, and about how you should have one in place in case something happens to you.  If you are among the 51% of Canadians who do not have a Last Will and Testament (as confirmed by a  nationwide 2018 Angus-Reid poll), you probably have a laundry list of reasons as to why you just keep putting it off. Among the variety of reasons are as follows:  25% of Canadians think they are too young to have a Last Will and Testament; 23% claim they do not have enough assets to make investing in a Last Will and Testament worthwhile; 8% simply do not want to think about it; 18% cite expensive legal costs; 5% believe that a Will is far too time consuming to fret over and finally, 2% of the respondents do not want to discuss their personal details with a lawyer. 

Of those 51% of Canadians who DO have a Last Will and Testament, only 35% have one that is up to date. That means that major changes in people’s lives (i.e. births, deaths, etc.), are not reflected in their Wills. Older Canadians (55 and up) are more likely to have an updated Last Will and Testament (Atlantic Canada being the exception to this).  Atlantic Canada is populated with older residents who are far less likely to have a Last Will and Testament in place. In Ontario, a large majority of the population do not have a Last Will and Testament. This is mostly due to the fact that Ontarians are typically younger and therefore, do not think too much about their assets (many are between the ages of 18-24). Older Canadians without a Last Will and Testament also use that same line of reasoning to put off a creating a Will: a perceived lack of valuable assets. The reality is that everyone has something of value to put into their Last Will and Testament, so conducting a thorough inventory of your assets and estate is very important. 

British Columbia and Quebec differ from the rest of Canada simply because of the fact that a large majority of people in each of these provinces have a Last Will. In Quebec, at least 58% of the population has a Last Will and Testament. Overall, women across Canada are less likely than men to have a Last Will and Testament in place (46% of women vs. 53% of men). Many female respondents often point to significant legal costs as the major culprit. Men however, are far more likely to cite the discomfort of discussing death as the major reason for putting it off. 

Canadians with higher incomes (i.e. $100,000 and above) worry more about keeping an updated Last Will and Testament.  Much like people with lower incomes, there is a hesitancy about discussing income, finances, assets, estate plans (and any other personal matters) with a person to whom they are not fully acquainted with (i.e. a lawyer).

The Angus-Reid poll cited that only two in five households in Canada making less than $50,000 have a Will in place.

We have cited several reasons as to why Canadians do not have a Will. If you are among them, you may want to rethink your decision, especially since there are inexpensive alternatives to using a lawyer — FormalWill.ca is one such option.