A Last Will and Testament in Canada
What does the law say, how to execute this difficult document, and do Canadians themselves think it is necessary?
In 2016, the sudden death of 57-year-old singer Prince, a funk icon, was accompanied by a scandal over the lack of a will that would distribute the $300 million fortune. The musician had five half-brothers and a full sister, who immediately entered into a battle over the property. The parties were only able to reach an agreement after six years of endless legal wrangling. That's when the world started talking about the importance of drafting this document in advance.
The Angus Reid Institute in Canada conducted a survey in 2018 that found that 51% of Canadians have not made their wills. 25% said they were too young to do so, almost as many said they didn't have enough assets, and one in 10 said they just didn't want to think about death.
Experts have repeatedly stressed that making a will in Canada is highly desirable. However, a Willful platform study in 2020 found that the rate has dropped even further: 64% of Canadian adults do not have a document.
A person is supposed to make his or her first will as an adult, and then update it according to the current situation and changing circumstances. For this purpose, Canada strongly recommends the following scheme:
Hire a lawyer (notary public for British Columbia and Quebec) if the situation requires professional advice.
Legal services are not cheap, which is why online probate services are widespread in Canada. For example, Willful and Legalwills platforms offer filling out a questionnaire, which results in recommendations: create a trust, deal with foreign assets, etc.
The service itself draws up a document, which must then be signed by the drawer and two disinterested witnesses in order to take effect.
Identify and specify two proxies:
- executor — the person you trust to carry out your instructions described in the document: organizing the funeral, accounting for property, controlling its distribution. He or she cannot be a minor or someone who has been convicted of a criminal offense. Also, the executor must not be a beneficiary. In case of unforeseen circumstances, it is recommended to find a substitute executor who can take responsibility. You can choose a family member, a trusted friend, or go to a professional;
- defensor for children — if minor children remain, you can choose someone you trust. The court will determine the identity of the defensor, and mentioning someone specific in the parent's will would be the deciding factor.
Think through the first plan, the alternative plan, and asset allocation.
Canadian law does not insist on any form of filling out a will, however, the document should specify:
- information about yourself: full name and address;
- current marital status;
- who are appointed as executors, their details and contacts;
- information about all their biological and legally adopted children;
- information about the assets and their beneficiaries (beneficiaries).
You can leave your assets to one person, give to family members, friends, charities, and commercial organizations.
In Canada, what is inherited is what is called the remainder of the estate — what remains after taxes, all debts, funeral expenses, and other amounts to be paid.
An alternative plan must be indicated in case circumstances do not allow for the first one: beneficiaries may give up the inheritance, organizations cease to exist, etc.
Once a will is drafted and signed, it becomes the legal Last Will. Canadian law requires neither notarization of the document nor its registration. It is recommended that you simply keep it in a secure place, preferably fireproof, known only to your designated executor.
Upon the death of the owner of the will, the executor takes the will to the local probate court for probate. A "Grant of Administration" is then issued to the trustee, which will allow the applicant's assets to be collected and kept.
All wills in Canada must be in writing, but some provinces, such as Alberta, accept handwritten or holographic wills, and British Columbia allows it to be kept online.
Under Canadian law, if a will is not made, the court appoints a probate caretaker to secure the assets. Thereafter, the assets will be distributed in accordance with the laws of the province or territory by court order. There are general rules: for example, if the deceased has a spouse but no children, the estate goes entirely to the spouse. If there is a spouse and 1 child, assets are distributed as follows: the first $200,000 CAD will go to the spouse, and whatever is left will be divided equally between the spouse and the child.
Assets are transferred to the state only if the person has no relatives, including distant relatives.
In Canada, you can take care of the end of your life path not only by making a will. The government offers various options:
- palliative care;
- voluntary refusal of resuscitation;
- voluntary discontinuation of treatment;
- palliative sedation for comfort;
- options for medical care in death.
It is also legally possible to plan for care when a person makes a written plan that outlines scenarios related to the patient's condition, caregiving, and other circumstances. In addition, it is possible to choose a person in charge to make decisions if the patient is not capable of doing so. The person can be appointed by the provincial court, usually a family member or close friend.
Canada takes responsibility for old age and end-of-life issues and strives to provide its residents with comfort and safety. Nevertheless, it is worth taking care of the financial side of things on your own, taking a sensible and early approach to drafting a will, and not neglecting the help of professionals.