Legal Wills 101: What is a Last Will and Testament?

By Willful and Eirene Cremations

No matter what stage of life you are in, you may know that you need a will but don’t know where to start or feel uncomfortable thinking about death. We get it - any end-of-life planning can be tough to get started. In this article, we’ll help walk you through it by explaining the importance of wills, the key things you should know when creating a will and how to manage the emotions involved with end-of-life planning.

What is a last will and testament?

A last will and testament is a legal document that outlines your final wishes, specifically regarding how you want your assets to be distributed after you pass, who will step in as guardian for minor children, and who will act as executor to settle your estate on your behalf. While not all wills are the same, typically a will includes:

• A section to leave specific gifts (particular assets you want to be left to particular beneficiaries)
• A section to set an age of inheritance for minor children and name a guardian(s)
• A section to divide your residual estate among beneficiaries (everything you own that hasn’t been left as a specific gift)
• A section to name an executor
• A section to outline final wishes surrounding burial and final ceremony
• A section to name a pet guardian and leave money for your pet’s care
  

What makes a will legally valid?

Wills come in many different shapes and sizes. Whether it’s with a lawyer, online using a platform like Willful or using a DIY will kit. While there are nuances in provincial laws and language, here’s what makes a will legally valid in Canada:

• It’s in writing as a physical hardcopy.
• You are over the age of majority in your province and of sound mind (there are some exceptions, for example, in BC, you must be at least 16 years old, and specific circumstances such as marriage or enrolment in the armed forces).
• If the will is typed, the will must be signed by the testator with two witnesses present who must also sign to confirm they witnessed your signature (your executor or anyone who might benefit from your will cannot be a witness).
• Signatures must be at the very end of the will.

It’s important to note that any will can be contested, regardless of how you created it. If that happens, it becomes the court’s responsibility to decide whether your wishes will be upheld.

When do I need a will?

While every adult should have a will, there are key moments in life that drive people to create one:

• Getting married or contemplating marriage.
• Being in a common-law partnership.
• Getting divorced.
• Purchasing a major asset, such as a home or property.
• Having a child.
• Owning a business or investments.
• Adopting a pet.

It’s always a good idea to get a will once you reach the age of majority in your province, however it becomes particularly important once you go through any of the above life moments. Having a will in place helps ensure that your wishes are followed and prevents any conflict or stress for surviving family members. It also gives you peace of mind knowing that you have a plan in place for your loved ones.

What happens if I die without a will?

When a person passes away without a will, they’re considered to have died “intestate.” People often mistakenly assume that this means their estate will be given to the government. While your estate won’t be handed over to the government, they will be in charge of assigning an executor, choosing a guardian for minor children, and distributing your estate to relatives using provincial laws. This process can be time-consuming and stressful for grieving loved ones and adds extra costs to your estate, leaving less for inheritors. Plus, your estate may not be distributed the way you would have wanted, and essential relationships could be ignored.

Planning for what happens with your estate after death is no one’s idea of fun, but we guarantee that dealing with an intestate estate is even less fun for the people you leave behind.

Where should I store my will?

After you’ve correctly signed and witnessed your will, it should be stored in a safe spot that is known and accessible to your executor. If you choose to store your will at home, it’s a good idea to keep it in a fireproof box or bag, away from moisture, direct sunlight or anything else that may cause it to deteriorate.

Some people also choose to store their will in a safety deposit box at their bank. If you do this, it’s essential to talk with your bank to ensure your family or executor will have access to it when you pass away.

It’s important to note that in Canada, you can’t store your will online.

How to manage the emotions of end-of-life planning

Planning for anything in life can benefit you; it’s true. But when it comes to pre-planning for end-of-life, we often never think about doing it until we experience loss. There are emotions and mental states that can be tough to get past to even arrive at the point of managing the things that you need. In fact, for many, it’s easier to just live without considering the need to plan. But, we all know that by taking the time to pre-plan - whether it is your will or funeral, you can save yourself and your family time and headaches.

When it comes to planning for our future and end of life, we are often reminded to do these things when we experience a loss or a significant, potentially negative milestone (such as COVID-19). It’s important to think ahead and make your estate plans before these stressful events as you want to ensure you have the time and headspace to think about your wishes.

Luckily, there are many tools available that will help you manage these more delicate details and help take the guesswork out of a tough time. Both Eirene and Willful are working to help Canadians expedite the process of planning a loved one’s end-of-life arrangements, and reducing stress and further anguish. And if it gets tough, be patient, take your time, and remember that you are building for a better future.

Take care of the planning now, and focus on living today.

Willful is an online estate planning platform that makes it easy, affordable, and convenient for Canadians to create their will and power of attorney documents in less than 20 minutes.