Note, April 9, 2020: Many parents are thinking about their wills more than ever due to the COVID-19 pandemic. Some lawyers are still able to help you create a will during the pandemic. There are also online will services to consider, such as Willful.
If you were to die suddenly, what would happen to your kids? This is a scenario no parent wants to think about, but preparing for it could spare your family a great deal of delay, expense and even conflict as they navigate their new reality without you. Preparing a will ensures that your wishes—both for your children and your estate—will be known and, assuming you have fulfilled your legal obligations, followed.
We talked to Eleanor Carlson, a lawyer at Carbert Waite LLP in Calgary, and Dorisa Nachla, a barrister and solicitor and founder of Nachla Law Office in Oakville, Ontario, to learn more about wills—and what happens if you die without a will. Note: The information provided applies only to people living in Canada and may vary from province to province. This article does not constitute legal advice—you should always consult a lawyer where you live to seek out advice that’s right for you.
What is a will?
A will is a legal document that explains how you want your estate to be divided when you die. If you include a guardianship clause, you can also appoint a guardian for your underage children. You can also specify your preferences for your funeral arrangements.
If I die without a will, what happens?
If you die without a will, your estate will be divided and distributed according to the laws of your province or territory.
For example, in Ontario, anything you own jointly with someone (such as your family home) automatically goes to the co-owner (usually your spouse/partner). For everything else, if you are married with kids and you die without a will, the first $200,000 of your estate plus one-third goes to your spouse, and the other two-thirds is divided among your children equally. If you have a different plan in mind, you need to state that in a will.
“In Canada, we’re allowed to override what the law says,” says Nachla. “Ninety-nine per cent of couples who come to our office to do spousal wills override the law and give everything to their spouse. It’s only if both spouses die that they then divide everything among the kids.”
In your will, you choose the age at which the estate will be released to your kids; most people choose an age from 21 to 25. Nachla usually recommends erring on the side of caution and leaning toward 25. Your executor can release some or all of the estate trust funds earlier, but he or she is required to release all estate trust funds on the birthday you specify as the age of inheritance in your will.
If you don’t have a will, and your kids are under the age of majority, their money will be held in a trust, managed by a trust administrator, an executor or your children’s guardian—more on that below—only until they reach the age of majority. Few parents want their kids to have access to their entire inheritance at that age, and writing a will ensures that they won’t.
Things get more complicated if you die without a will and you have a common-law spouse and/or a blended family. “In Ontario, common-law spouses don’t have estate rights,” says Nachla. That means common-law partners (and their kids from prior relationships) are not automatically entitled to part of your estate, even if you’ve all lived together for years and/or you and your common-law partner have biological children together. “If common-law spouses want to leave any part of their estates to each other, they must do so in their wills,” says Nachla.
This is also true if you and your partner are unmarried and don’t meet your province’s or territory’s definition of “common-law,” says Carlson. (The terminology varies by province – in Alberta, it’s called an “adult interdependent relationship.”)
If you don’t want your partner to receive anything from your estate—say, you want everything to go to your kids—it’s important to speak to a lawyer. In Alberta, for instance, if you excluded your adult interdependent partner from receiving any assets under your will, he or she could make a claim against your estate. Similarly, in Ontario, if you don’t have a will, or if you have one but don’t leave anything to your common-law spouse, he or she could seek a trust claim based on his or her contribution to an asset, such as a family home, but it’s often “an uphill battle,” says Nachla.
In Ontario, if you die without a will, the law also doesn’t distinguish between minor children and adult children. “If the law says your biological children get two-thirds of the estate equally, that’s what happens, regardless of age and regardless of whether they are adult children from a prior relationship,” says Nachla.
If that’s not what you have in mind, say so in your will. You might want to divide your estate differently. Maybe you have both biological children and stepkids you want to provide for. Maybe you have a child with a disability who requires long-term support, or you want to leave money to your siblings. If you have minor children, chances are you’d rather they receive their trust money in gradual disbursements, not all at once when they turn 18. You can address any of these scenarios in your will.
If you have a will, your adult children have no entitlement to your estate, and you aren’t obligated to leave anything to them, as long as they aren’t dependent on you (such as if they have a disability that prevents them from being self-sufficient).
In Alberta and Ontario, the process to administer an estate where there is a will is different than where there is no will. “With a well-drafted will, the process is more streamlined,” says Carlson. “You can save your loved ones time, energy and money by speaking with a lawyer and clearly laying out your intentions in your will.”
Estate law varies by province and territory. Learn more about estate law where you live or consult a lawyer in your area.
Who will take care of my kids?
If you have a will, it should include a guardianship clause, which appoints someone to look after your minor children if you and your spouse/partner both die (while this situation is rare, it could happen).
If you don’t have a will, or if you have one but you don’t appoint a guardian, your intentions won’t be known, so a court will decide who looks after your minor children. A decision could take several days, weeks or even months, since potential guardians must be found and screened for suitability. In the meantime, the children’s aid society (foster care) in your province or territory would likely look after your children.
A guardianship clause is legally binding, unless someone contests the parents’ choice of guardian. A judge can choose a different person, if he or she decides that would be in a child’s best interests, or if there is a dispute over who should be the guardian, says Nachla. Usually, however, the parents’ wishes carry a lot of weight, and they are followed based on the court’s presumption that the parents are the best judges of who should care for their kids.
How do I choose a guardian?
“That’s the hardest question,” says Nachla, who is a mom herself. “It’s the most important and the most daunting: who’s going to take care of my kids if something happens to me?”
Parents often struggle with choosing a guardian, adds Carlson, who is also a mom. Relatives are usually the obvious and most practical choice. When choosing an individual, couple or family, remember that they’ll be raising your kids, not just providing for them. Are the prospective guardians willing? Do they share your values and beliefs? Do they have the ability and means to care for your kids, in addition to their own?
Your children’s ages could also affect your decision, today and down the road. “If you have young children, think about what you would want right now. Parents with young kids often look to family, even if they’re not local,” says Carlson. “As your kids get older, ask yourself if that’s what you still want. When parents have teenagers, they’re often more concerned about keeping consistency in their children’s lives—school, friends, sports teams—rather than move them across the country to live with family. Parents might choose a family friend who they wouldn’t have chosen while the kids were young.”
Both Carlson and Nachla recommend picking a secondary or alternative guardian—someone to step in if your first choice can’t care for your kids. “During the guardianship, particularly if the children are very young or have special needs that preclude them from being self-sufficient even as adults, something could happen to the first person, and it’s better for the parent to choose a backup than leave it to the guardian to do so,” says Nachla.
Carlson adds, “If you are appointing a couple, you should also consider if you want those individuals to be able to act independently—for instance, if they break up. If so, would you prefer one of them as the guardian, or would you rather move on to the alternative guardian?”
Who will manage my kids’ finances?
In addition to appointing a guardian, your will should name an executor (in Ontario, this person is also called a trustee; in Alberta, the term is personal representative) to manage your children’s money, which is held in a trust until they are, at minimum, the age of majority in your province or territory.
The guardian and the executor don’t have to be the same person. “Some people are great with kids but not so great with money, and vice versa,” says Nachla. “And a lot of parents want to have that check and balance. They’d rather not name the same person for both roles, because it’s harder to keep an accounting of how the money is spent over the years when the executor is also the guardian.”
If you do choose different people for the roles of guardian and trustee, consider whether they can work together, adds Carlson. “If you pass away while your child is young, it is possible the two of them will be in their respective roles for many years.”
If you have chosen just one person to be both the guardian and executor, it’s important to name a substitute, in case your first choice can’t take on one or both roles, or he or she can no longer act as either guardian or executor or both for any reason. “With any appointment of either a guardian or executor or both, you want adequate coverage, which means having at least two people appointed for each role,” says Nachla. “You should never be down to one guardian or executor who is able to act for you in either or both of those very important roles, because anything can happen.”
What if I’m separated or divorced from my children’s other biological parent?
“In Alberta—and this varies by province—if you have a will which gives assets to your married spouse and you later get divorced, if you pass away your will is read as if your divorced spouse has pre-deceased you,” says Carlson. “Divorce doesn’t nullify the will, but it changes how the will is read. Basically, your assets will be distributed to the next layer of beneficiaries.”
If you’re separated but not yet divorced, however, that doesn’t happen—your spouse could still get everything. “You should update your will when your intentions change. If you’re separated, you should think: does my will still meet my intentions?” says Carlson. “If you don’t have a will, the court may still decide to give all of your assets to your spouse, or it may make a distribution based on various factors, including how long you’ve been married, how long you’ve been separated, what did the relationship look like as far as economical support for each other, and would you have had obligations to pay support if you had been divorced.”
If you’re divorced and you pay spousal support and/or child support, it is likely your estate would be obligated to continue paying after you die. You can’t write into your will something that would contradict your divorce agreement documents.
In Ontario, if you are separated but not divorced, and your pre-existing will names your ex-spouse as a beneficiary, the estates office (which handles applications for probating wills) would presume that he or she would still get your assets. Your executor would be required to present your separation agreement to set aside the will (so it’s as if you died without one), or your ex-spouse would be required to sign renunciation documents. “It’s definitely a good idea to redo your will if you separate—that is not something you should let fall through the cracks,” warns Nachla.
In Ontario, the estates office doesn’t recognize “separated” or “common-law” for the deceased’s marital status, only “unmarried,” “married,” “widowed” or “divorced.” If the deceased’s marital status does not fit into one of the categories on the probate application, the application is red-flagged by the estates office. The estates office is not familiar with family law rules and laws, and it presumes the surviving spouse has an entitlement to the deceased’s estate, even if the deceased had been separated for longer than the statute of limitations for making property claims. The separation agreement would have to be presented to the estates office to be examined by a judge. In order for the estates office to treat the deceased as widowed or divorced and disentitle the surviving ex-spouse, the separation agreement must contain a clear mutual waiver and release of estates rights. “It’s a hassle, and it means extra expense for the surviving children of the deceased and other beneficiaries if the deceased is separated but not divorced,” says Nachla. “In that way, a divorce is part of estate planning.”
If you have questions about separation, divorce and your estate, speak to a lawyer in your area.
OK, I clearly need a will. Can I prepare my own will, without a lawyer?
If you plan to prepare your own will, either by writing it out by hand (“holograph will”) or by using a will kit, check with your provincial or territorial government or a lawyer in your area to confirm that it will be honoured by the estates office (which may have a different name where you live; in Alberta, it’s called the “Surrogate Court”).
“Writing a holograph will is much more complicated than it appears on the surface,” says Nachla. Few people know how to prepare one properly, and it takes at least twice as long to probate a holograph will than one prepared by a lawyer. In the meantime, your assets are frozen.
Nachla also cautions against using store-bought will kits or forms downloaded from the Internet. They may lack the nuance that many people require, they may not be suitable for your province or territory (or even Canada, if they come from American sources) and they may be outdated, legally speaking.
Hiring a lawyer to prepare your will ensures that it’ll be done properly, and that it’ll be probated as quickly as possible. If you haven’t done any estate planning (which is largely focused on saving taxes), or you have no will, or your will is poorly prepared, this causes delays and extra expenses. “That’s what people don’t realize,” says Nachla. “Poor estate planning depletes the estate unnecessarily.”
Not only that, but without speaking to a lawyer, you may miss out on important legal info you need. For example, Carlson says, people in Alberta may not realize that their will may only apply to their assets inside the province. If they own a vacation property in British Columbia, for example, they should speak with a lawyer to determine if it makes sense for them to have another will, valid in British Columbia, to deal with assets in that jurisdiction. There are some options if you have assets in multiple Canadian jurisdictions, and a lawyer can help you make an estate plan that works best for you. And if you have assets outside of Canada, you should consult a lawyer wherever those assets are located.
If I lose the original will, is a photocopy or digital scan valid?
Not necessarily. In Alberta, says Carlson, “the only will that matters is the original, as far as the court is concerned.”
The same is true for Ontario, says Nachla. “If you don’t have the original will, it’s much worse than losing your passport. A photocopy or even a notarized copy of your will may not be successfully probated—it’s a huge, huge hassle. If the estates office does not accept a copy of the will, you’ll have died ‘intestate’—without a will—as far as they’re concerned, even if you had one.”
Where should I keep my will?
Many law firms store their clients’ original will, but you might want to store yours at home. “I always tell my clients that the safest place for their original will is with them,” says Nachla. “Years ago, when the common practice was for lawyers to keep original wills in a vault, not a week went by that I didn’t get a frantic call from someone whose own will or a loved one’s will couldn’t be located because the lawyer had moved, retired or died.”
If you take your will home, put it somewhere safe and secure—ideally, a fireproof, waterproof safe. Let your executor know the will’s location and give him or her a copy. (You may also want to provide a list of your assets and debts.) “I wouldn’t recommend a safety deposit box at a bank,” says Carlson. “Often banks require the will to determine the executor and open the box. If the will is inside, your executor may have trouble getting access in the first place.”
Do I ever need to update my will?
Update it whenever your intentions change, when big life events happen (such as a divorce, marriage or death in the family) or if something else changes (say, if the executor or guardian you’ve chosen is no longer available, or your kids pass the age of 21).
Ask your lawyer if any life changes will affect the validity of your will. In Ontario, for example, your will is automatically null and void if you get married—even if you don’t intend to change anything in it. You must have a new will prepared.