Having a will is not a legal requirement – but there are many benefits to having one. If you do not have a will, your loved ones will be forced to take on the burden of settling your estate. In some cases, there may be disagreements about how your estate should be distributed. As a result, there may be legal battles and additional time and money required to settle your estate.

What is a will, anyway?

In short, a will is a legal document that outlines instructions for how an individual’s estate (which is the sum of all your property and assets) will be distributed after that person dies. A person’s will only comes into effect once that person dies. A will helps ensure that an estate is distributed according to the wishes of the deceased and gives legal authority to the executor (sometimes also known as an “estate trustee”) to take certain actions. A will also provide protection for the estate and for those people who the deceased has chosen to receive property and assets (known as the beneficiaries.)

Why do you need a will?

By having a will, you decide how your estate will be allocated. Instructions for how your estate will be distributed can be as specific or as general as you wish. For example, you can list certain amounts of money or certain items to go to certain persons or you can simply instruct that your assets be “divided evenly amongst your beneficiaries. A comprehensive will with clear instructions reduces the potential for conflict between family members and helps to simplify the process of settling your estate. 

A will can also help you reduce taxes, lower outstanding debts, and limit payments to be owed to the government. This is of particular importance in scenarios where the government might otherwise be in a position to claim the majority of an estate, leaving would-be beneficiaries with significantly less than they otherwise might receive.

In short, having a will is the best way of giving your family the power to manage your estate after you pass away. A will helps ensure your wishes are given the force of law – and gives you the peace of mind that comes with knowing you have put a plan in place. 

What kind of clauses should be included in my will?

A will can include many provisions, and how complex or simple a will you need will depend on your individual circumstances. That said, even a basic will should include:

  • appointment of an estate trustee
  • authorization for the estate trustee to act on behalf of the estate; and
  • instructions for the distribution of the proceeds of the estate (after payment of debts)

Wills also frequently include provisions for the investment of trusts and instructions regarding funeral and burial arrangements.

What if I have minor children?

If you are a parent who has sole custody of children under the age of 18, your will can indicate who you would like to become their guardian until a judge can make a decision regarding permanent guardianship. More often than not the judge will place great weight on who you have chosen to entrust with your children’s well-being. You also have the option of appointing a trustee in your will if you feel that your children are either too young or not responsible enough to manage their share of your estate. The trustee then looks after the estate (for example, an investment portfolio) with the best interests of the children in mind, until they reach a certain age or other criteria that you have decided upon.

What assets and property can and cannot be included in my will?

A will should encompass all of the assets of the deceased, but there are some notable exceptions. The estate generally includes real property (land, houses, and the contents therein), vehicles, shares in businesses, and investments and bank accounts. Note that life insurance policies or pensions that have a named beneficiary do not form part of the will, so it is important to ensure you have listed the correct person on any such policy since a will cannot change a named beneficiary to another contract.

A home that is owned with another person (or several people) as “joint tenants” does not fall under a will. Upon the death of someone who is a joint tenant, his or her interest in that home automatically transfers to the remaining joint owner(s). For example, this is a common arrangement between spouses. Note that this could lead to problems in certain situations. For example, if a multi-family cottage was jointly owned by a brother and sister, and the sister dies, her portion would not go to her husband and children, but instead, automatically transfer to her brother. To avoid this, a different form of ownership known as tenancy-in-common must be put in place, which would then allow each sibling to include their share of ownership as part of their will, which they can then designate to a preferred beneficiary.  

Why do I need a lawyer to draft a Will?

As the example above suggests, while the rules of succession may seem simple, there are sometimes important details that, if not properly addressed, can have serious impacts on how your estate is distributed. An improperly drafted will can accidentally disinherit an intended beneficiary or accidentally include people that you did not wish to be included. In some cases, a will can be found to be invalid (even for such things as improper signing or witnessing!) In such situations, your estate will be distributed under a default set of intestate (i.e. without a will) rules as determined by the Succession Law Reform Act.

Wills that are unclear or improperly executed may be challenged in court, leading to significant costs and delays in distribution.

An experienced lawyer can help identify any of these details and ensure your wishes are respected

Contact the Estate Lawyers at Tierney Stauffer LLP in Ottawa and Arnprior for Comprehensive Estate Planning

Having clear and concise language when drafting a will can help avoid delays or costly litigation among the eventual beneficiaries. Tierney Stauffer LLP uses a client-focused approach and provides innovative guidance through the estate planning and administration processes. Our estate planning and estate litigation lawyers provide practical and honest advice to clients and represent their interests. We have extensive experience working with clients in estate planning matters and also representing them in litigation should it become necessary. Call us at 1-888-799-8057 or contact us online to set up a consultation with a member of our team.

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