The Basics of a Legal Will
Do you have a legal will? If the answer is no, you’re not alone. According to a 2018 CTV poll, 51 per cent of Canadian adults do not have a Last Will and Testament. Further, Legalwills.ca conducted their own survey in 2016 and estimates the number is closer to 62 per cent!
This article explores the basics of a legal will and other supplementary documents, and why it’s important to have them in place.
What is a Will?
Formally referred to as a Last Will and Testament, a will is a legal document that expresses a person’s wishes about what is to happen to their property and any other assets in the event of their death.
In a will, a person will choose their beneficiaries, their executor (also called an estate administrator) and a guardian for any minor children.
For citizens of Alberta, Saskatchewan and Manitoba, a handwritten will (also known as a holographic will) is legally sound. However, the rest of Canadians must use a standardized will form. These can come in the form of a will prepared by a lawyer or notary public, or a legal will kit which a person would complete themselves. Most industry experts warn, however, that in the case of an important document such as a will, it’s worth spending a couple hundred dollars to get a proper will drafted by a legal expert.
What should I do with my will?
A will should always be kept in a secure place where it can be easily found, such as a safe or in a safety deposit box. One’s executor and family members should be aware of the existence and location of the will. As an added measure, or to maintain privacy, a person can file a Wills Notice with the Province of BC for a small fee. The registry is maintained by the Vital Statistics Agency and details the location and existence of a will but does not keep a copy of the will on file.
A will should be revisited every 5 years or whenever there are major changes in one’s life such as a marriage, death, divorce or new children. For simplicity and to keep costs low, a Codicil (change form) can be completed rather than writing a new will from scratch.
What if I don’t have a Will?
If a person dies without a legal will they will have died “intestate”, which means that the Intestate Succession Act governs their estate. This can cause headaches for one’s next of kin, as this method often leads to extra costs, delays and frustration in the settlement of one’s estate.
In addition to a legal will, there are two common directives that often accompany a will: the Enduring Power of Attorney and the Representation Agreement. The powers of both documents are triggered by an incapacity caused by a serious unforeseen health event, such as a stroke, heart attack or accident.
An Enduring Power of Attorney allows for the appointment of an individual(s) to manage one’s legal and financial affairs if they are no longer able to do so. The Enduring Power of Attorney is essentially one’s agent, and can manage one’s investment accounts, maintain or sell a house or vehicle, pay their bills, take care of their pensions, and even apply for benefits or supplementary income to which the person is entitled.
A Representation Agreement is invoked after a health crisis that leaves a person unable to make decisions about their health. In addition to important decisions such as medication, hospitalization and living arrangements, this directive also details a person’s wishes to be – or not to be – kept alive by any artificial means.
The fate of one’s assets and personal care are too important to be left to chance and should be properly documented to ensure one’s wishes are carried out properly.
Those who do not have a legal will, Representation Agreement or Enduring Power of Attorney in place or fear their current documents may be out of date should visit a lawyer to ensure their affairs are in order.