What is a Last Will and Testament?

What is a Last Will and Testament?

Many people have asked the question, what is a last will and testament. By making a will as a testament, you ensure your possessions are distributed diligently according to your wishes.

So, what is a last will and testament? This document shows what your desired wishes are for your assets and properties. A will and testament provides definite instructions about how your belongings are given out when you die.

This document will state which dependents or groups get to manage your accounts and interests.

This guide will talk about what a last will and testament are and the process of drafting one. We will explain the importance of having this document and the limitations of preparing one.

What is a last will and testament?

A last will explains how individuals want their assets distributed upon their demise. The requirements of a will and testament forms vary across Canadian provinces. However, if you wish to draw up a last will, you must put it in writing and have at least two witnesses.

 People who die without a last will or testament will state laws dictating how their assets are shared. Employing the services of an attorney is ideal to oversee this process.

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How does a will and testament work in Canada?

A will and testament directs how your properties will be shared. While Canada’s provinces differ on how this document works, it’s necessary to get a reliable lawyer. For anyone with business investments, specifying how they are shared is essential.

This document lets you share your assets with third parties, such as charities or institutions. When you write a last will and testament in Canada, the instructions are only valid upon your death. This document names the individual with the administrative duties of the will.

 Also, a probate court must supervise the execution of the will. It is an integral instrument for settling an estate plan. Although an estate plan is more than a will, the will and testament guide a probate court to settle an estate.

Estates with specified beneficiaries, such as retirement plans, life insurance policies, or bank accounts, are not included in a last will. The designated documents are passed directly to the beneficiaries.

Categories of wills

In this what is a last will and testament section, we will discuss the last will and testament firms available in Canada. The wills in Canada include:

Simple will

A simple will document leaves all the deceased assets to beneficiaries. This will and testament of Canada is easy to draft. You can also amend them whenever you wish. A simple will is for people who don’t have children from other partners. Also, it’s an excellent choice for those with minimal assets who don’t have a large family.

Complex will

A complex will and testament are required if you have specialized needs. An ideal situation for this document is when you need a testament trust.

A testament trust is a type of trust drafted within a will. With this document, you transfer ownership of your properties into a trust rather than directly to your beneficiaries. This complex will allow you to create trust for specific needs, like individuals with disabilities.

Holographic will

This will is written explicitly by a testator. Provinces in Canada do not recognize this type of will, and they have particular requirements. This type of document will require at least three witnesses who must witness the signing of the document.

Living will

This is a different kind of will when compared to others. This is because this living will doesn’t specify who inherits what properties. A living will is drafted to make future decisions about health care. With this will, you state which medical care you want and do not want when incapacitated.

Nuncupative wills

This is an oral type of will; however, it is not legally valid in all provinces. You will need some witnesses who will have their statements recorded.

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Essential requirements of a last will and assets

All wills need to meet specific requirements. Here are the important ones:

Sound mind

Mental stability is necessary for a will to be accepted. People with mental issues and cognitive dissonance will need a guardian before a will can be drafted.

Highlight assets and beneficiaries

A legal will and testament will require you to choose assets that are to be transferred. It is also necessary to name any personal loans you might have that your recipients will need to pay. You will also need to identify the intended beneficiaries in the document.

A designated executor

A will need a professional executor who will carry out the dictates of the will. In Canada, I might be a solicitor who has practiced for at least 3 years. However, people without a law degree can be executors in certain situations.

Witnesses

Witnesses are a crucial part of Wills. In many Canadian provinces, you must have at least two witnesses who aren’t blood relatives. Speaking with a barrister with will knowledge can be helpful.

Limitations of a last will in Canada

There are some situations where a will doesn’t apply. Some of these limitations include:

Deposition of some properties

A will won’t be valid when you transfer a property held in joint tenancy. It will also be invalid with:

  • Property by a living trust
  • Life insurance documents with stated recipients
  • Digital assets such as crypto wallets or NFTs
  • Pension plans and other retirement plans
  • Stocks and bonds that have an already-stated beneficiary
  • Funds stored in payable-on-date bank accounts

Direct burial arrangements

A will cannot contain how you should be buried. This is because of the dynamic situations surrounding when a book will be read. If you want to be buried in a particular direction, put it in a different letter where it can be accessed by your family.

Giving conditional gifts

If you are giving a gift through your will, it must be done without conditions. You can’t bestow a property on someone by tying it to conditions. Marriage, religious beliefs, and divorce can be reasons to give gifts.

Reduction of owed taxes

Your last will and testament prevent you from avoiding taxes owed while alive. The Canada Revenue Agency will still collect the tax from your estates even after your death.

Leaving properties or money for your pet

You can bestow any funds or assets on your pet. For pet owners, you can give them to a trusted individual. Then, you will provide that person with the necessary funds in the will to care for the pet.

Arrange care for special-needs people

It’s not feasible to provide long-term care for people with special needs in your will. People with these unique personalities create a special needs trust for them.

With this trust, you can provide how the individual will get care. This care will not affect the benefits a person also gets from government programs.

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What a last will and testament in Canada contains

This section will explain what a last will and testament is and how it works. Different provinces have rules guiding what a will should contain. Here are some basic clauses that are included in most Canadian wills:

Introductory clauses

The first clause in a will is the introductory clause. This clause demands your personal data. You will list your name, address, and if you are of sound mind.

A declaration clause

This clause shows that you want this document to be your last will. It will indicate that it is legally valid and supersedes any will that you might have written before.

Administrator clause

An administrator clause shows what an executor will do. Also, this person will manage the assets until they are fully transferred to recipients.

A bequest clause

A bequeathed clause clarifies who should get what and at what time. However, it only applies to physical properties. Your named beneficiary should be documented in this section if you have a living trust.

A residuary clause

A residuary clause states who will inherit any property not stated in your estate plan. It should specify the exact details of the assets or funds to be shared.

A guardianship clause

This clause is meant for people who have minor children. You will appoint a legal guardian who will fill out this clause. Make sure there is a replacement for this guardian should your primary one be unavailable.

An attestation clause

This is the clause that your two witnesses will sign. This clause needs to be filled out for the will to be valid. Different provinces have diverse rules concerning the rules guiding witnesses.

Benefits of having a last will

In this what is a last will and testament, we will discuss the importance of making a will in Canada. They include:

Your family is covered

One of the best benefits of having a  will is that your family is protected. Without a will, anyone can claim your estate, or it could be subjected to state laws of intestacy. Even if it’s little, people close to you will benefit from your will when you are gone.

Provision of a child guardian

Since transferring an estate to a child can be tricky and complicated, a will allows a guardian. To ensure that your kids are supported and taken care of, a will allows you to set aside funds under the supervision of a guardian.

You can select your desired executor

When you have a will, your powers include selecting someone with complete control over how your estate is distributed. This person should be a reputable and reliable individual. The authorities will choose an administrator if an individual passes on without a testament.

It’s amendable

Since circumstances change, you might change your mind about how to transfer your estate. People can amend any part of your will and testament using a codicil.

It is revocable

If you discover that your drafted will doesn’t represent your interests, you can revoke it. The laws of will revocation differ from province to province.

It isn’t expensive

Getting a last will is cheaper than expected. This works perfectly if you don’t have complicated family properties. Also, you will only be charged a little if your beneficiaries are straightforward.

Disadvantages of having a last will

When learning about what is a last will and testament, understand that it has some drawbacks. These disadvantages include:

It can be challenged

In some instances, a will can be challenged in court. Even if you follow all the procedures in the book, the court can intervene. If someone is disgruntled about any part of the will, they can approach the court.

May pass through probate

People with assets worth more than a certain amount could face probate. This is a process where a deceased asset is distributed. The duration of a probate can be extended. However, if you have a living trust, it’s a safer option.

It becomes a public record

Once a will is filed for probate, it goes public. This means that anyone can see the content of the  Will and Testament.

Are there any penalties for not having a will in Canada?

For people who die without a testament, the provincial law will determine how all your assets are distributed. This is known to the law as dying intestate. The intestate laws in your province dictate what people will get from you.

While these laws try to be as unbiased as possible, they aren’t foolproof. Although family members are considered, the courts will decide what each will get. If your family cannot decide who to be a guardian for your kids, the courts will choose arbitrarily.

Cost implications of a will and testament

The cost of drafting a will depends on how it is designed. Using a template to draft a will is common among Canadians.

There are numerous Testament templates online you could use. This type of will is free, but you might need to pay for a safe deposit box for around C$80. However, you could save money if you have a secure vault at home.

Moreover, using the services of a lawyer, while better, is expensive. Lawyers in Canada charge around C$600–C$800 for a simple will. If it becomes more complicated than this, you will pay an extra C$400.

Furthermore, if the lawyer maintains the last will, it could cost about C$1200 a year. Also, if the lawyer is your executor, he will collect additional fees.

Trusts vs. last wills

A trust permits the holder to pass the affairs of your properties to a legal authority. However, a last will is a legal document that allows the transfer of assets from one individual to another when you pass on.

In Canada, you have revocable and irrevocable trust. Usually, these trusts serve as an alternative to transferring assets among generations.

The best time to draft a will in Canada

Getting a will is vital for all adults in Canada; however, some situations make it more critical. Here is a perfect time to make a will:

After marriage

In some Canadian provinces, marriage revokes a will already made. You will need to contemplate marriage for the will to remain valid. Newly married couples are advised to get a will.

After divorce

Also, you need to get a will when there is a separation or divorce. Some provinces revoke gifts made to an ex-spouse, but some provinces permit them.

When you have huge assets

You need a will if your estate is large and your assets are many. This is to avoid tension with your family when you die. With a will, what each person will get is specified.

Conclusion

The above guide on what a last will and testament are is extensive enough. The explanation will assist you in knowing what a last will and testament is. Wills are very beneficial, as they help avoid troubles among family members when you pass them on.

It’s important to note that the last will can be contested if necessary, so try to be as fair as possible. If you draft a will, talk to a professional attorney.

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FAQs about what is a last will and testament

How can I know a valid will in Canada?

A will must be written for it to be considered valid in Canada. A digital will is frowned upon in most provinces. You should also be of good age and mentally stable.

How does a will work after the owner passes away in Canada?

It works by naming a representative known as the administrator. An executor manages the property but must ensure that it is shared according to the dictates of the will.

Is an online will legal in Canada?

Yes, you can use an online site to create your will. However, two or more witnesses must sign it offline to be considered valid. In British Columbia, though, a will can't be signed electronically.

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December 6, 2023
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