Making a Will – What goes in a will?

What goes in a will?

Common questions about what information to include in a will

 What should I think about before I make a will?

  • Make a list of all of the property you have. This includes: land, possessions, insurance policies, bank accounts, pension plans, investments, etc.
  • Decide who you want to give this property to when you die.
  • Think about whether there is any property that could flow directly to a beneficiary  (i.e. not pass through your estate under your will).
  • Make a list of the debts you have, as debts must be paid from your estate.
  • If you have children under 18, decide who you would suggest as a guardian.
  • If you have special needs children, think about what arrangements you want to make for them.
  • Be aware of your potential legal obligations to any spouse or ex-spouse, adult interdependent partner or ex-adult interdependent partner, children, grandchildren, and great-grandchildren.
  • Consider any special bequests you would like to make (and think about doing so while you are still alive if you anticipate any problems with such bequests).
  • Choose someone to act as personal representative and talk to this person about it.
  • Assess family dynamics and make your decisions accordingly.

Remember that you will not be around to help your loved ones interpret your will. Be sure that you are as clear as possible in your description of your wishes. Although a court can take into account additional evidence of intent, this is not a simple matter, and legal proceedings can get costly. For example, be clear about exactly who your beneficiaries are. You can’t say, for example, that you want to leave everything to “hungry children in Alberta.”

Similarly, you need to be clear about the special items that you leave. For example, you may have more than one ring, and more than one nephew, so be sure to mention that is it your “great-great-grandfather Bob’s gold wedding ring” that you want to leave to your nephew, “Joe Mitchell.”

What kind of instructions does a will contain?

Your will contains your instructions about what you want done with your property after you die. The language should be clear and simple, so that no one is confused about what you meant. Typically, a will has several sections.

  • It often begins by cancelling any previous will(s).
  • It appoints the personal representative. This is the person who is responsible for carrying out the instructions in your will. You should appoint someone whom you think will outlive you and who is capable of the task (see the previous section for more information).
  • It says who gets your property. Remember that your will only comes into force after your death. It can only dispose of property you owned at the time of death.

If you are leaving property to someone in particular, you may want to provide for the possibility that he or she might die before you. For example, if you leave your property to your niece, what happens if she dies before you do? Do you want her children to inherit it, or do you want the property to go to someone else?

  • It says who gets any property that remains (known as the “residue”) after all the beneficiaries have been given their specific gifts. If a will does not contain such a clause, the residue will be treated as if the testator had died without a will (“intestate”).
  • It can include other details as you wish. For example, you can name a guardian and/or create trusts for your minor children.

Note: The naming of a guardian in a will is not binding. Someone else can still apply to be the guardian of your children, and only the court has the final say.  Naming a guardian in a will, however, does ensure that a court will hear your opinion.

Should I put my burial wishes in my will?

You can if you want to, but it may not be a good idea, as often the will won’t be found or read until after the funeral. The person named in your will as your personal representative has first priority to make funeral arrangements, followed by your spouse or adult interdependent partner living with you at the time of your death.

You should tell the person who is most likely to arrange your funeral what your wishes are or leave separate written instructions.

Can I deal with all of my property in my will, or is there some property that I cannot deal with in my will?

In theory, in your will, you can deal with all types of property: land, possessions, money, investments, personal belongings, insurance policies, business assets, etc. However, how you hold a particular piece of property (for example, joint tenancy), might mean that property does not flow through your estate and therefore is not dealt with under your will.

Similarly, documents you otherwise sign in relation to a piece of property, like a designation of beneficiary form, might mean that property does not flow through your estate and therefore is not dealt with under your will.

What happens to property held in joint tenancy?

In general, if you own assets in joint tenancy, they do not form part of the estate. Let’s say you and your spouse own your home as joint tenants, or have a bank account as joint tenants. When you die, the home and the money in the account automatically belongs to your spouse and does not pass through the will.

As a result, such property cannot be used to pay your debts. An exception to this rule, however, is a situation in which joint tenants die at almost the same time and it is impossible to tell who died first. In such a case, the joint tenancy will be treated as a tenancy in common, meaning the property will flow through the estate.

Note: Property for which the registered owners are described as tenants in common does flow through your estate.

What happens to my RRSPs, RRIFs, TFSAs, and pension plans?

Usually RRSPs and RRIFs do not form part of the estate, because in the RRSP or RRIF you name a beneficiary. If you do so, when you die, the bank or trust company transfers it or pays it out to the beneficiary you named.

You can also name your estate as the beneficiary, at which point the monies will flow through your will.

Similarly, if at the time of your death your named beneficiaries have died before you, the monies will flow through your estate. This is why it is important to keep in mind who you have named as beneficiaries and ensure that you keep your wishes up-to-date.

With RRSPs and RRIFs, it is also important to think about the potential tax consequences. There are tax advantages to leaving RRSPs and RRIFs to a spouse. These tax advantages do not exist with other beneficiaries.

A pension plan death benefit can say that it is to be paid to a certain beneficiary or to your estate. If the money is to be paid to your estate, the money will form part of your estate and will be distributed according to the terms of your will. If the money is to be paid to a certain beneficiary, the money goes directly to that beneficiary. It does not become part of your estate. For example, if you name a pension plan beneficiary in your will, and then later sign a separate designation form for the pension plan benefit, the earlier provision made in the will is revoked.

What happens to insurance policies?

An insurance policy can say that it is to be paid to a certain person or to your estate.  If the insurance money is to be paid to your estate, the money from your policy will form part of your estate, may be used to pay debts, and will be distributed according to the terms of your will. If the insurance money is to be paid to a certain person, the money goes directly to that person. It does not become part of your estate.

Again, if at the time of your death your named beneficiaries have died before you, the monies will flow through your will, an important reason to keep in mind who you have named as beneficiaries and ensure that you keep your wishes up-to-date.

I own my own business and have a special needs child – how do I deal with such things in my will?

Dealing with business assets can often be complicated and there are many legal technicalities that you may need to consider (such as corporate law and tax law). You should consult a wills and estates lawyer.

There are various means of ensuring financial security for your special needs child (such as the creation of a trust). This, however, can get quite complicated. It is again recommended you consult a lawyer.

Do I have to leave my estate to my family?

In most cases, you are free to deal with your property as you wish. However, the Wills and Succession Act does place some limits on that freedom.

The Act tries to make sure that your family members are left with money and support whenever possible, particularly if they need it. Children, including adopted children, and a widow or widower are all considered “family members” under this Act, and they can make a claim if they feel that they have not been adequately provided for under your will.

In such a case, a judge considers all the circumstances of a case in deciding whether to give support to the family member. Some of the circumstances are:

  • the nature and duration of the relationship between you and the family member;
  • the age and health of the family member;
  • the family member’s capacity to contribute to his or her own support;
  • the financial circumstances of the family member; and,
  • your reasons for not providing for the family member in the will. It helps if the reasons are in writing and signed by you, or if they are included in the will.

Similarly, minor and disabled adult children, and adult children under 22 who are going to school can apply for support from a parent’s estate, if the deceased was supporting the child at the time of the death.

The same is true of a minor grandchild or great grandchild, if the deceased grandparent/great grandparent was standing in the place of the parent of the grandchild/great-grandchild when the grandparent/great-grandparent died.

The Act also recognizes the contribution of both spouses to a marriage. The Act says that when one spouse dies, the surviving spouse is entitled to an equal division of matrimonial property.

My spouse and I separated quite some time ago, but we never did get a divorce. I have now been living with someone else and we are adult interdependent partners. Does this affect whether I should write a will and, if I do, what I should put in it?

Yes. In such a situation (i.e. where there is both a spouse and an adult interdependent partner), if you die without a will, either all or some of your estate may be divided between the two individuals (depending on whether there are also children and/or grandchildren involved).

However, if you die without a will (intestate) your surviving spouse is deemed to have died before you if you have lived separate and apart for two years, or have signed an agreement finalizing your affairs.

The separation of married spouses for any length of time does not affect a will; no change occurs until a divorce is final. This may not be as you wish.

For this reason you should consider writing a will that sets out your wishes (bearing in mind any legal obligations you may have to either or both your spouse and your adult interdependent partner). Also, given the general complexities of the situation, you may wish to consult a lawyer.

I am currently paying both spousal support and child support to my ex-spouse. Is this something that I need to address when writing my will, or would this obligation die with me?

No, the obligation does not die with you. Upon your death, a court can look at whether, in keeping with your obligation, you have made “adequate provision for the maintenance and support” of the dependents in question, and, if you have not, monies to fulfill the obligation can be taken from your estate.

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