Making a Legal Will in Canada – LegalWills

Making a Legal Will in Canada – LegalWills

The facts are, everyone should have a Will. 

And just like life insurance – a Will is for others – not you.  

By making a Will you have the opportunity to clearly describe the distribution of your assets and wishes after you are gone – as grim as that statement does sound. Those wishes can include how your money is managed, management of houses or real estate owned, and much more.

I consider a Will as part of “adulting” and if you haven’t done one yet – well, you need to.

Maybe because the holidays trigger some reflection is why I’m thinking about reviewing and updating our Will soon. I mean, life changes. Making a Will is certainly not just for when you are old(er).

With a New Year comes new priorities – making a legal Will

I got the chance to talk to the team at LegalWills recently about their process, the ins-and-outs of Wills and some considerations that you need to mull over. A family member also took a test drive of the entire process just to see if the making a legal Will in Canada is as easy as LegalWills says it is.

Will

Let’s get into details…

Why a Will and why an Executor? 

While I have a Will (as does my wife) – done many years ago now – we likely need to review it and potentially update this year just to ensure it captures all plans, instructions and wishes.

Essentially, I see a Will as those instructions to the Executor and remaining family members or other beneficiaries who have a responsibility to arrange for all “final affairs”. That goes from everything to the funeral wishes to any asset distribution wishes. It also includes taking care of any outstanding debts and liabilities, not to mention final tax returns.

Although I haven’t performed the process and administrative duties yet (thankfully…), I am the Executor for a few close friends and family. It’s an important role and request – one that I don’t take lightly.

In fact, appointing an Executor may be one of the most important decisions related to an estate plan or Will you will make. I see being trusted as an Executor (to carry out someone’s wishes) as a major responsibility – given this administration process is ever evolving and can be very complex.

I asked the team at LegalWills to provide a summary of this Executor role and why it’s so essential.

Mark, you’re spot on. This role is not to be taken lightly. 

The first thing the Executor has to do is take control. They must identify and secure all of your assets just to make sure that nothing goes missing.

They must probate the Will – which is the official process by which the document is accepted as your official Last Will and Testament and they are given the legal authority to act through a document called a “Grant of Probate”. This Grant of Probate allows your Executor to start gathering your assets (and hopefully you have an inventory of assets to help them) and they will present this document to each bank and financial institution.

The Executor must then pay debts, taxes, and then distribute your assets to the beneficiaries according to the directions in the Will.

You should also leave clear instructions for what should be done with your “digital assets” like your social media accounts because this has become a new layer of responsibility for your Executor.  While all of this is going on, your Executor is also responsible for arranging your funeral.

Other key appointments – guardians

Children - LegalWills

Beyond the Executor role, you may need to consider guardians for your children.

If neither parent was available for the minor children (e.g., a common accident occurred or a single parent was involved in a loss), somebody will need to take care of your children.

This is not an issue for us but I can appreciate younger parents have a complex and critical decision to make on this.

Sadly, if you don’t have a Will, then a judge at the family-law level courts will appoint a guardian for your children. (Geez, hopefully someone decent will come forward for your children!)

I can’t imagine why younger parents wouldn’t have a Will for this very reason.

Be mindful that after you are gone, your guardian may have personal struggles of their own. Potentially, they are no longer healthy or able to look after your children. So, to that effect, your guardianship decision is not a legally binding appointment.

If your children are not minors, then there is no guardian appointment necessary.

I also asked the team at LegalWills to highlight what considerations should be included for any parent with young children in their Will, although every decision is personal of course.

Mark, we find it interesting that many people get stuck on this page of our service, because they find it difficult to choose the right guardian. Perhaps there are unspoken family expectations or they don’t want to disappoint somebody, but by not naming a guardian you are putting the decision into the hands of a judge.

A judge can look at how the person is related to the child, their income, where they live, their own family situation, but they can’t look at the less obvious factors like parenting philosophy, spiritual beliefs, and even the bond and relationship the individual has with the child. There are often trade-offs to be made; perhaps the best guardian lives in a different province or country. Ultimately, the appointment should rest with you, not with a judge.

Asset distribution – what goes where and to whom?

Beyond the critical decisions above, the next major important instructions to be set out in your Will relates to the distribution of your assets. Those could be gifts, charitable donations, wealth-distribution decisions from your estate and much more.

Recipients of your assets are referred to as beneficiaries and the assets that are distributed are called bequests.

Bequests can be cash, cars, family furniture heirlooms, jewelry, stocks, a percentage of your entire estate, and any combination of these things and more.

The team at LegalWills shared some common assets that your Will might consider identifying and describing.

Beyond your list above Mark, we encourage Canadians to give some consideration to “digital assets.” These are online accounts that may have financial value such as, a revenue stream from a YouTube channel, a domain name, cryptocurrencies, or personal accounts like your online photos. In your Will, you can now make it clear who should take responsibility for your digital assets and who will receive what.

A couple of other things to note: You cannot leave a large sum of money directly to a young child so your bequests may end up going into trust. Even then, you may not want your child to receive their entire inheritance at 18 or 19 years of age, so your Will allows you to stagger their inheritances. For example, you could give your children 1/3 of their inheritance at age 21, the next 1/3 at age 25, and the remainder at age 28.  

Based on the guidance above, it seems to me you should not think of making a Will as an once-in-a-lifetime event – assets change over time. So, this is part of the reason why we need to review our own Will again in 2021 and see if those instructions still make sense.

What happens if you die without making a Will? LegalWills insights…

Well, you might be frowned upon as being an irresponsible adult for one.

I’m kidding, kinda.

Honestly, my initial thoughts are, if you die without a Will and you haven’t appointed an Executor, you may be inviting a family squabble. Also, will your spouse, adult children, or a family friend take on the role?

While this is being sorted out, nobody has secured your assets or even taken an inventory. It’s not uncommon for items that have been verbally promised to family members to suddenly disappear – depending on family dynamics. You need an Executor to take charge of this.

When you don’t have a distribution plan, the destination of your assets may not be as obvious as you think. For example, you may think that your surviving spouse or partner may receive all assets automatically without a Will – but don’t bet on that.

LegalWills provided an important detail to this discussion that didn’t immediately come to my mind:

This is very important to clarify Mark. If you are married with children, everything would pass to the spouse in just two (2) Provinces. It would not happen in any other Province or Territory. Oh, and if you are living in a common-law relationship, five Provinces (including Ontario) do not recognize that relationship if you die without a Will. Your partner would receive nothing.

Geez.

This is where I asked my family member that used LegalWills recently about the process – and specifically – why a Will now?

My family member:

I recently purchased a home which really triggered in my head that this is something I need to get done. Having gone through the process of trying to manage my ex-wife’s estate after she passed away, I realize how important it is for having a Last Will and Testament. Although my children are no longer minors, they are still very dependent on me financially, and if something were to happen to me without a Will, I would be leaving them in a very difficult position. Age is also a factor as I approach 50 – I absolutely know it’s something that is very important to have done and I want to have it.

With this important background information about Wills shared, I also asked the LegalWills team some important questions you might have as well. Here was our discussion on some key subjects.

So, let’s go with the obvious – why not use a lawyer? What was the trigger for LegalWills to launch their products and services? Was there a particular tipping point?

(Answers as told by LegalWills Co-Founder & CEO, Tim Hewson)

Yes, there was Mark.

This originally came about when we were working together for a large company and we had a tradition of going out for Friday drinks after work. There were a group of about 15 of us, and somebody mentioned that they needed a Will, but didn’t have one. We went around the table, and these were a mix of people some married, owned houses, some had children, we were all professionals, and not one single person around the table had a Will. And every single one of us knew that we should. It seemed like a broken system to us, and it wasn’t just a cost barrier. It was an education and convenience issue. At the time the only alternative was a blank form Will kit which was widely regarded as terrible. At that moment, we started to investigate why the options were so limited. That was back in 2000. We started working with lawyers at that moment to offer an affordable, but high quality alternative.

Great to hear. Should any prospective users (including my family member) be concerned these are not legal documents and will not “stand up”? 

There are two ways to answer this question. Firstly, you can look at the laws related to Will in your Province. The basic requirement for a Will is that it must be signed in the presence of witnesses. Anybody has a right to prepare their own Will, and even writing your Will on a blank sheet of paper would be perfectly valid (it just wouldn’t be a very good one). There is no legal requirement to work with a lawyer to write a Will. You should work with a lawyer if you need legal advice, but most people do not need legal advice to write a Will.

Furthermore, we have been in business for 20 years, prepared hundreds of thousands of documents, and we have never once heard of there being an issue with one of our Wills. We have on the other hand heard from many people who had a family member use our service and subsequently pass away – these people have written to us, thanking us for the service.

And for my final question Tim, should users retain copies of their completed documents and if so, where and with whom?

Excellent question Mark.

Yes is the answer!

The most important final step of preparing your Will is storing it in a safe place that is known and accessible to your Executor. Your Executor is the only person who needs the document (you can if you wish simply give the document to your Executor in a sealed envelope for safe keeping). There is no requirement to file or register the document anywhere. Do not hide your Will. We regularly get calls from people saying that a parent has died, they have a Will, but nobody can find it. If nobody can find your Will, it is the same as not writing one.

We also offer a unique digital solution to managing your personal information and legal documents called MyLifeLocker. It’s a secure service where you can upload complete instructions for the Executor of your Will, a full list of your assets, bank account details, online account information, etc. Then, only the “Keyholder(s)” who you have authorized will have access to that information after you have passed away.

Closing thoughts – Making a Legal Will in Canada

I certainly don’t see making a Will as any one-time event and to be honest, I have to get after reviewing our current Will to see if it includes everything we think it should, should something catastrophic happen to one or both of us.

To paraphrase my family member who just completed this process:

What was most important to me was to ensure I can clearly state what my intentions are. I did not want to produce a Will or POA which leaves instructions open for interpretation.

Well said.

Everyone should have a Will – such that family and loved ones have those clear instructions on what should happen next. Your Will does not require a lawyer although that may be beneficial to you based on your circumstances. There is no requirement to use the services of a lawyer or notary public to prepare your own estate planning documents, including your Last Will and Testament but as always, personal finance is personal.

As part of a new partnership with My Own Advisor readers, LegalWills.ca is happy to offer the following promo code MOA15 at the time of product checkout.

Canadian Legal Wills

As always, there is never any obligation to use any partnership code on my site. Any codes that exist on my site are always elective.

Thanks for your readership and drop me a question in the comments section. The team from LegalWills is also ready to provide their subject matter expertise and answer questions. 

Mark

Disclosure: My Own Advisor was not compensated for this post. I was curious about the process and so was my family member. I have always used a lawyer for any of my previous Wills and I would not hesitate using a lawyer again for any fee-for-service counsel to understand any legal implications of my/our decisions including those beyond a Will. There is no one-size-fits-all.

My name is Mark Seed and I'm the founder, editor and owner of My Own Advisor. As my own DIY financial advisor, I've surpassed my goal and I'm now investing beyond the 7-figure portfolio to start semi-retirement with. Find out how, what I did, and what you can learn to tailor your own financial independence path. Subscribe and join the newsletter! Follow me on Twitter @myownadvisor.

49 Responses to "Making a Legal Will in Canada – LegalWills"

  1. I am recently married to my spouse who has three grown up children with his ex. I like to draw up a will to leave all my assets to my mother and my sister and brother except my house we live in. If I died, can my spouse challenge my will in court to get my other assets. It is too bad that he doesn’t want to sign any agreement now. Any suggestions what I should do?

    Reply
    1. Gosh Annie, I would really draw up your Will and consider talking to a lawyer about any issues/concerns just ensure your intentions and wishes are managed well.

      Reply
    1. Sam, before my husband and I had children, we bought our first house. The lawyer handling the transaction said he would throw in wills for us, for the same total cost.
      We didn’t have many assets and hadn’t thought really beforehand that we needed one, but thought Ok, that is a good idea.
      The lawyer seemed to just use a fill in the blanks format. No children, so in the event of both of our deaths, assets would go to siblings, that sort of thing. The lawyer annoyed me on two aspects: first, he had both documents prepared using the term “common-law spouse”. My husband and I had been legally married for a few years, so don’t know why he got that idea or put that in without even asking us. The second thing was that my husband wanted to include his parents in his share and he gave us grief about that. None of his business.
      So, given that a lawyer probably won’t spend a lot of time on drafting a fairly straightforward document for you, they shouldn’t charge you very much either.
      But if I were in that same situation again, I wouldn’t hesitate to use an online package.

      Reply
      1. Hi Barbara, you make a key point here. Not all lawyers are estate planning lawyers. So if you are going to use a lawyer, please make sure that their expertise is in estate planning, otherwise, yes, they will be asking you to fill in some blanks and have somebody in the office put the information into some standard software. So you really will be worse off than doing it yourself because at least if you have done it yourself, you would have got your marital status correct, and you will be free to distribute your estate however you wish without fear of judgement.

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        1. Yes, Tim, I agree with your comments.
          The lawyer who did our first will had thrown it in when he handled the purchase of our first home. We were new in the small city and didn’t have any recommendations. So when we sold that house (and were not purchasing another) we used him again for the sale.
          At that time, he asked me to sign something saying I was not xxxx person, who had the same name as me. Then he said “don’t worry, I know who she is because I have defended her”. He was a criminal defence lawyer!

          Again, thanks to both Tim and Mark for this useful post. It has got me reading and thinking and planning. My daughter became very worried that I was sick and not telling her something, so I have had to reassure her a few times that things are just fine with my health.

          Reply
  2. Mark, I have a quick question. My wife and I have real estate, non-reg investments (joint), RSPs, TFSAs, joint bank accounts and private pension but no children. All registered investments are joint with my wife and all non-registered investments have each other as beneficiaries including our private pensions. I am thinking I do not need a will and I believe there are few couples who are in the same boat as us with no children. Do you recommend we get a will? And what would it accomplish if we do vs if we don’t? Any comments is appreciated.

    Reply
    1. Hi Sam, this is a good question, let me try and convince you otherwise. 🙂
      You are not writing your Will to come into effect today, or even this week. Your Will is most likely to come into effect some time in the (hopeful) distant future. This is why your Will talks about your “estate” in general terms. It doesn’t list your assets. In fact, you can even accumulate assets after you have died (accidental death settlements for example). So in theory, you could try to make a plan for every asset, but this doesn’t cover other, as yet, unknown assets.
      Then there is the second point. What happens if your wife and yourself are involved in a common accident – a car accident. Then what will happen to your assets? Does every asset you have listed have a contingent distribution plan? probably not. If you write a Will you describe not only a plan, but also an “alternate plan”. You may say “if we are both gone, I don’t care what happens” but I think if you really think about it, you probably do – you could for example help a number of charities that mean something to you.
      The final point is that your loved ones will also have to prove that there is no Will. Even if the assets end up eventually going to the same recipient, you have not named an Executor to take charge of everything (the courts will do this for you….after a period of time), and the banks will want to know that you haven’t prepared a Will directing assets to go somewhere other than your spouse. It’s a muddle, and the estate will take much longer to resolve.
      It’s actually never a plan to not have a Will.

      Reply
    2. Hey Sam,

      FWIW, we have no children ourselves and we have a Will – although I want to revisit just in case this year. Same, pensions, personal assets, etc. but the reality is should something happen to both of us – I want our affairs taken care of so we have a Will and likely always “will” have a current one updated and ready to go. Life happens sadly.

      Mark

      Reply
  3. Thanks everyone for their comments here, all are useful.
    I understand that you can specify that the Executor be paid an hourly salary for their time, is that correct Tim?
    Or is it automatic? Does your service allow for this? If I have to specify an amount, do you have a suggestion? Of course over time inflation will lower the amount, so may have to be updated.

    I appreciate the comments to go with just one Executor. I would prefer my oldest child to do it, but seeing as he lives in Boston now, that wouldn’t work well. My youngest is also a math major and works in a bank, who knows maybe she will even get into estate stuff in her career? But I would want her to be compensated for all the time consuming tasks.

    One thing that puzzles me, is how do you know what is your estate, when you are married. If you got divorced, things would be divided equally. So on death, are 50 percent of assets considered yours? Or only things that are in your name? And then, only non-registered assets, if you have arranged for a successor of the registered plans?

    There is a lot I don’t know…..
    But I would be quite open to using this online service, because I do not feel that our estate is at all complicated.

    Reply
    1. Hi Barbara, the Executor compensation is set through Provincial courts based on the size and complexity of the estate. You can over-ride this in your Will, but our service doesn’t allow for this, and there is a good reason.
      You actually have no idea what the size and complexity of your estate will be. Even if your Will came into effect tomorrow, your estate could be involved in litigation, you could have money coming to you after your death, there could be a number of reasons why your estate is larger and more complex that you think. And that’s not even taking into account the fact that your Will is more likely to come into effect many years, or decades from now.
      Usually Executor compensation is set as a percentage of the estate rather than an hourly rate. (imagine having written your Will 30 years ago and you stipulated that your Executor should receive $9 an hour!!). But there wouldn’t be a whole lot of value in you setting in your Will a number of say, 3 percent of the estate, and over-riding the compensation set by the courts.
      Of course, you can always name your Executor as a beneficiary as well if you don’t think they will be compensated enough.

      Reply
      1. Thank you Tim for your response.
        I am not really that keen on compensation being set as a percentage of the estate. Mainly because that could go two ways: the estate has high value, but is easy to administer for whatever reasons. Or the estate value is low, so that the fixed percentage does not compensate enough for the time it takes to administer.
        I would like a value something like x times the current minimum wage at my death, or something similar; that way you know that the one who takes on the task works for an appropriate amount.

        I am still struggling to understand what is “MY” estate, when I am married. Only bank, investments and property solely in my name? And in BC, the first $300,000 of this goes to the spouse when dying intestate, so I am hoping that I am not forced to follow those rules.
        Anyone with insights?

        Reply
  4. Great post. What are those two provinces where everything would pass to the spouse ” If you are married with children, everything would pass to the spouse in just two (2) Provinces”? Would it be fair to say that in those provinces you need of having a Will is less as compared to others?
    Thanks

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  5. Happy New Year, Mark, and best wishes to you and your readers for a happy and healthy year.

    Thank you for this post. As with your other posts, I learned from both your post and your readers’ comments. I am considering using a bank’s executor services, and am looking to learn more about this. I saw the comments about fees above. If any of your readers have any other thoughts, suggestions or experiences to share in this regard, I would appreciate reading them.

    Reply
    1. Sounds good JF. I haven’t used my bank’s executor services and I didn’t even know some banks had some. That is interesting. I think that’s a great space for them to be in, to be honest.

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  6. Even with wills and probate documents banks can be exceedingly difficult and uncooperative to work with during the executorship period. Even getting a statement of deemed disposition value of my late father’s stock holdings in a taxable account for capital gains calculations was very difficult. You would think their Estates departments would immediately connect with the brokerage accounts etc. but they don’t – it is up to the executor to push string up a hill. Even getting payments made for things like home maintenance fees until the property can be sold can be difficult, requiring a lot of needless, in-person effort.

    If you don’t have a will currently, go and smack yourself and get one. Even if you agree with your province’s distribution allocations for dying intestate, you will be adding tremendous amounts of extra time and costs for working through the bureaucratic steps. Don’t be lazy and unfair to those left holding the bag.

    If you are aware that you could be at risk of passing away in the next 5 years you MUST wrap up unfinished business (e.g. properties with unclear titles or surveys, legal agreements with business partners, etc.), or you will be leaving your an executors a nasty and unfair surprise. Consider pre-death distributions of family heirlooms – not only will you be sure the right beneficiaries get them, you save needless family strife (and avoid probate on them). Be careful about appointing two people as co-executors – they will need to jointly sign most documents and unless they live together/nearby it is very difficult.

    Anyone contemplating the role should grab some books from their local libraries on the topic, ask for financial institution’s guidelines, download CRA’s documents on handling terminal estates, and visit things like funeral homes to know what the whole process will be.

    Do not agree to become an executor unless the individual asking agrees to disclose major asset types (properties, business interests, investment accounts including institutions, insurance policies, etc.). They don’t need to provide the valuations but an inventory is a must. Finally, do not agree to become an executor without finding out if there are special instructions (e.g. the executor must oversee a trust account for an adult child) – once you take on the role, it is very hard to back out of it.

    Being an executor can provide a sense of fulfilment and final act of care for the person you love, but it requires a lot of time, effort, and exceedingly careful organization.

    Reply
    1. “Do not agree to become an executor unless the individual asking agrees to disclose major asset types (properties, business interests, investment accounts including institutions, insurance policies, etc.). They don’t need to provide the valuations but an inventory is a must. Finally, do not agree to become an executor without finding out if there are special instructions (e.g. the executor must oversee a trust account for an adult child) – once you take on the role, it is very hard to back out of it.”

      Smart advice Bart.

      I’m fortunately not in that position myself…Executor for parents and a few family members but that’s really it.

      I hope to write a few posts about this subject since I suspect many other folks are in the same position – at least for parents.

      Reply
  7. We are in the process of updating our Wills, POA and Personal Directive documents updated. It was one of my financial planning goals for 2021. At one point we strongly considered using our Bank’s Executor service but the cost was 3-5% of the estate value. We realized with a bit of organization we could simplify the process, making it easier for the Executor to know where everything was located. Cost to use a lawyer as about $1000K for two Wills, two POA, two Personal Directives. Our estate is not that complicated. These documents are so important that is money well spent. Great topic Mark. Less than 50% of adult Canadians have a Will.

    Reply
    1. One thing to consider when appointing a professional Executor is that yes, they generally take a significant percentage as well as an hourly fee for performing the role. If you appoint a friend or family member as the Executor, they can always hire professional help as and when required (paid for out of the estate), so the hourly fee is paid, but not the 5 percent of the estate.
      We have heard of estates where the main task was changing the title of a house to the main beneficiary.The fee? 5 percent of the value of the house, plus an hourly rate. The fee was out of proportion to the task.

      Reply
    2. Geez, that is a scary stat isn’t it Gruff? <50%. Not great at all.

      Our estate is not that complicated as well but it’s worth revisiting this year and I have it on my financial to-do list. 🙂

      Smart stuff on the Wills, POAs and any Powers of Personal Care. I have to ask my parents about the whereabouts of their stuff as well.

      Reply
  8. Good topic, Mark!
    What some may not realize, is that if some circumstances change, your will can be made invalid. For instance, 5 years after my mom died, my dad remarried, which made any previous will invalid. The lady was a well-off widow and they were going to have documents drawn up for both to keep their assets for their own children. But my dad passed away only a few months after their wedding, without a new will being made and so he died intestate. Which pretty much meant that this lady got the house and all the money my mom had scrimped and saved for her whole life.

    I need to make a new will, as now all my children are adults. I would like to leave all my money to them, to avoid what happened to me. Of course my hubby would be left my RRSP, TFSA and my share of the house and has enough of his own RRSP. But I am not sure if I am legally allowed to do this in BC. I have told them all of my wishes, however.

    When we lived in Ontario, we lived next door to a lawyer. I remember him telling me that there was no simple estate, that there could be so many complications and you had to be careful with your will. Probably true for the people he dealt with.

    The other thing I have to consider is the Executor. I have read the pros and cons of having more than one. I would really just like my daughter to be the Executor, but am worried that it would make hard feelings with her brother who also lives in our city and said he wanted to do it. (I was hoping he would say no) He is not as financially responsible as she is, and at times I get so mad at him I want to cut him out of my will.

    Reply
    1. “…without a new will being made and so he died intestate. Which pretty much meant that this lady got the house and all the money my mom had scrimped and saved for her whole life.”

      Wow.

      Our Wills are rather simple but I think they need to be revisited just in case. Our lawyer helped us draw them up.

      I’ve seen first hand in my family the pros and cons of having co-Executors or none at all. I would not advise on having more than one and one only, based on first hand observations.

      Reply
      1. Hi Barbara,
        This is a very hot topic, and the laws around this are being reviewed and even revised in some Provinces. Currently the only way for a Will to be automatically cancelled (other than preparing a new Will) is by marrying. Your situation is the exact reason why this law is being reviewed, and there are pressure groups in place trying to get this law changed.

        And Mark, yes, the general consensus is that one Executor is always better than two.

        Reply
    2. Barbara,

      My wife’s father (a Saskatchewan farmer) almost had a similar situation but it was remedied. One day out of the blue he called her and told her he had married a woman he had been seeing for a few years. She congratulated him and days later informed him that his will was no longer valid which he didn’t realize. The understanding between him and his new wife was that what is his goes to his children and what is hers goes to her children when they died His lawyer’s recommendation to accomplish this was that he should have signed a prenuptial agreement. Since that was too late now they had married, the lawyer prepared a post nuptial agreement whereby they each had to have separate legal advice to sign and that it may or may not be valid since they were never tested in courts. When he passed away there was no issues on settling his estate.

      The bottom line of all this is that one should have legal advice when preparing your will to accomplish what you want after your death. It is rarely a simple situation as most people think. Also some provincial laws take precedence to what is in the will for surviving spouses. Your lawyer can give you recommendations.

      I would also strongly recommend that you have only one Executor based on family experience. Even more so since your son sounds like he is not as financially responsible as your daughter.

      Reply
      1. Roger, I am glad that it worked out well for your wife’s family.
        In my father’s case, his new wife of a few months duration could have chosen to honour their verbal understanding, but did not. My dad died fairly quickly, but not suddenly. My cousin (more like a brother) had actually arranged for a lawyer to attend him, which he did in the bedroom where my dad lay, and wrote up the particulars/notes for a new will. But my dad passed before it could be written up and signed.
        The estate wasn’t huge, like would be the case with a farmer with valuable land. Just a working man’s savings, but as my dad was only 66, he hadn’t drawn on them at all. For me, it was more the thought of how my mom had never taken anything for herself and saved all she could from working a minimum wage job, that bothered me. The new wife died not long after and her children, who didn’t seem to have much of a work ethic, received the benefit of my mom’s labours.

        Reply
  9. When I got divorced (1990) I went for the whole nine yards and got the divorce quite simply because, as stated above, if you are not divorced you are still legally a couple. Although not the case above and I am not sure how this would play out but I was told if I got back with the ex even for a short time within two years then a legal separation is nullified. If there is no legal separation then the ties may be even closer.
    And why pay twice, once for the separation and then again for the divorce?
    If you can you go for the divorce right away.

    After the divorce I had a will done up as my children were still minors. An executor(s) was named just so the ex could not be in charge of the monies.
    I have just recently redone my will as all my children are independent and I also went for the “Power of Attorney”. This is to simplify procedures if you should be declared inapt or incapable to make your own decisions. If you do not have a POA then one would have to be obtained for someone else to administer your properties – car(s), house, properties, stocks, etc, etc.
    I got to name who I wanted to have the POA.
    You have to think about it though. A POA gives whoever administrative power over everything you have. Buying, selling, paying debts, etc. EVERYTHING.
    So don’t go in blindly. Talk to a lawyer about it and get it explained.

    RICARDO

    Reply
  10. Thank you Mark for again providing very important information. What I still continue to find unclear is that it sounds like you “must” probate the Will for banks (financial institutions) to allow access for the Executor. We are trying to avoid probate by making our requests clear in the Will. It seems probating the Will just adds more complication and delaying the process for what needs to be done. The more I google the subject the more unclear it becomes. Like you mentioned, I guess it’s time to update my Will and ask a lawyer to confirm all these questions.

    Reply
    1. That’s a good idea. I actually don’t know the answer myself. I should ask my lawyer too but maybe LegalWills knows the answer? Lots of things to consider for an Executor. I hope to write some instructions on this myself since I’m an Executor for a few people. Nice of them to ask, but a lot of work too…

      Thanks for reading.
      Mark

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      1. Hi Mark and Lisa,
        You do have to be careful when researching this on the internet because you will get very different answers for different jurisdictions, particularly the US system is very different to Canada.
        Probate in Canada is simply the process by which your Will is recognized as your official Last Will and Testament, and your Executor is given the authority to act. They are given a document called a “Grant of Probate”. When the Executor has to gather your assets and empty your bank accounts, the bank will ask to see this Grant of Probate. So in practical terms, almost every Will must go through probate unless every asset is jointly held and going to the joint asset holder, or the amounts being dealt with are very small.

        Reply
        1. Good insights Tim, re: “Grant of Probate”. I haven’t heard of that document myself. Who is that document generated by? The court? I assume that is something an Attorney General’s office would issue?

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          1. Hi Mark, it’s issued by the probate courts. I can give you another illustration:
            Imagine you go into Royal Bank with your father’s Will, and with your ID saying “I’m the Executor of my father’s Will, I need to take the money from this bank account”. The Bank gives you the money (you are the Executor after all).
            Then the next day, your sister goes to the same bank, with a more recent Will naming them as the Executor. They say “my father has just died, I am the Executor of his Will, I need access to the funds in the bank account”
            RBC do not want this situation, but they have no way of verifying a Will when it is presented to them. The process for verifying a Will as the official Last Will and Testament is “probate”. There may be many Wills lying around, but there will only be one “Grant of Probate”. So this is the document the bank will ask for.

            Reply
  11. I have personal experience working in the estates and trusts field and my take is that the vast majority of Canadians with a degree of financial literacy can benefit from services such as LegalWills.ca.

    Reply
    1. Thanks Alan. I can appreciate and I personally believe such processes like LegalWills are not for everyone but it is a service for some and rightly so, a good one from what I see; including my family member that sought some guidance after a complex issue.

      Reply
  12. This post has been eye opening. I have long assumed that a will is to be prepared and signed by either a notary or lawyer to insure it is legal. Thank you Mark for clearing this up, and thank you also “Legal Wills” for a better understanding.

    Reply
    1. Welcome Beth. I don’t know what I don’t know either! My understanding is there is no requirement to use the services of a lawyer or notary public to prepare your own estate planning documents, including your Last Will and Testament ….but…. there may be tremendous value in lawyer services to talk through any issues or concerns.

      Reply
  13. From LegalWIlls.ca FAQs:
    “Why are you so much cheaper than a lawyer? Quite simply, because we do not provide you with legal advice.”

    Do yourself a favour: sit down with a lawyer. He/she can provide with advice specific to your situation and province. Money well spent.

    Reply
    1. Correct. I believe they are very clear on that since there are so many personal issues they are not in the business to cover.

      When in doubt, for any of life’s important issues, seek out professional, licensed and reputable counsel. Not all experts are created equal either!

      Mark

      Reply
    2. Hi Bob, actually, our service is very specific to your Province. This is a criticism of blank form Will kits that were intended to work across Canada, but today, any online service is very much Province specific. In fact, it’s the first question that you answer when you step through our service.
      It’s important to note that if you need legal advice – the interpretation of the law to apply to your specific situation, then you should speak to a lawyer. But most people don’t need legal advice to prepare a Will. We have had many people use our service who have previously used a lawyer, they were told that an update to the Will would cost them several hundreds of dollars and so they have looked at different options – like using an online service. The feedback we hear over and over is that the Will prepared using our service is as good, and often more complete, than the one prepared by a lawyer.

      Reply
      1. Tim,

        We’ll have to agree to disagree. I think most people would benefit from legal advice in drawing up a will.
        Sometimes we don’t know what we don’t know, especially when it comes to legal issues around estate law.
        And no, I’m not a lawyer.

        Bob

        Reply
  14. hi Mark
    my ex and i have been legally separated since 1984 but never divorced. neither of us is in any common law relationship and we have two grown children.
    Both of us have homes and investments, all accumulated after the split.
    my question is this,
    can the surviving ex partner make a legal claim against any of the departed partner’s assets especially if all of the assets are willed to the children?

    Reply
    1. I am not a lawyer but I recommend that you contact your lawyer who prepared your will to answer your question. My initial reaction is that she may be entitled to some benefits for the period prior to 1984. Also provincial legislation may also entitle her to some inheritance since she is still legally your spouse.

      Why do you not get a divorce and clean this up??

      Reply
    2. That’s a tricky question it seems Frank and unfortunately I cannot answer. Best speak with a reputable lawyer in your area – could be money well spent.

      Reply

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