Finally going to make a will? Here's what the experts say you should consider
Pro advice on will kits, funeral arrangements and when you especially might want to seek out a lawyer
According to an Angus Reid Institute poll from 2017, more than half of Canadians don't have a last will and testament. Of that group, 18 per cent cited cost as the main reason they hadn't written a will, while five per cent answered that it's too time consuming. Another reason that many Canadians say they haven't bothered to write or update their will? The uncertainty around whether they have enough assets to make the process worthwhile.
Yet these days, we have more and arguably easier options than ever before when it comes to will preparation: will and estate lawyers, businesses that offer fixed prices on lawyer-provided services, will kits, will-preparation sites and even DIY legal forms that are available for free online.
We set out to learn about the legal and financial benefits of having a last will and testament, and the nuances of each type of will-preparation service, with the help of two experts: Jamie Mendelovitch, a wills and estates lawyer at Lees & Lees in Hamilton, and Tim Hewson, founder and CEO of LegalWills.ca.
(Note: In this article, mentions of wills refer specifically to last will and testaments, as opposed to "living wills," which serve a different purpose.)
In Canada, what happens when someone passes away without a will?
According to Mendelovitch, everything would be determined by statute in this case, and there are rules in place based on "different scenarios set out by law." For example, if that person has a spouse but no children, then everything would go to the spouse in the absence of a will. If they have a spouse and one child, the first $200,000 in assets would go to the spouse, and whatever is left over after that would be divided equally between the spouse and the child. "And then it kind of goes down the line," says Mendelovitch. "If [they] have no spouse but do have children, everything is divided amongst the children."
But even if you're happy with these predetermined scenarios, having a will can be helpful in regard to the probate process, explains Mendelovitch. "That's when you apply to the court, and — I'm being very general here — they come back with a certificate naming the estate trustee: [the person] who has the authority to close down bank accounts, sell houses and then distribute the proceeds of all of that." Not having a will could mean delays and extra costs. "If you die without a will, your estate definitely has to go through probate," says Mendelovitch. "There's a 1.5 per cent tax on the total value of your estate when you do that, plus legal fees, which could be anywhere from $2,000 to $5,000 for the probate application."
Additionally, you won't be able to leave any gifts to charity without a will in place. "If there is no will, then the estate assets are distributed in accordance with the Succession Law Reform Act, and no donations would be made from the estate to any charities or organizations," notes Mendelovitch.
What are the main ways to create a will?
It's easy to find free or low-cost legal forms online, and then there are slightly more comprehensive do-it-yourself will kits. These kits have been around for decades, and retail from around $20 online and in office-supply stores, making them one of the cheapest ways to prepare a will. "[The kits] may come with instructions and probably forms with blank spaces where you put in your name, the name of the person you want to be the executor and then your beneficiaries," says Mendelovitch, noting that you'll need two witnesses who aren't beneficiaries to sign the final document for it to be valid. (Also, some in-store kits will now simply direct you to their websites to download and complete the forms.)
In recent years, online will services have launched to make the do-it-yourself process quicker and easier to understand (consider the difference between filing your taxes using automated software and completing the calculations and required forms by hand!). With will kits, Hewson says, "it's too easy to make a mistake — [there are] too many blank spaces." Online providers have made the process interactive, asking you a lot of estate-planning related questions about your pets, charitable requests and more. "When we ask you questions at the end, we compile your document based on the analysis of those questions," says Hewson. "We're asking people questions that they otherwise may not have thought about, [and] people at the end of it think, 'Actually, I have a really good understanding of my will now.'"
The site also has a page that specifically prompts for charitable bequests, and a separate, free service that helps you write down your funeral wishes, which can be stored with your will. "We recommend that you do not put funeral wishes in the will itself," advises Hewson. "In Canada, your funeral wishes are not legally binding, just an expression of your wishes, and the executor of your will has the final say on your funeral arrangements."
Hewson mentions that his company does not "give people estate-planning advice or tax mitigation advice" — you should go to a professional for that — but they do have an "expat will service" that can help with "cross-border wills" that cover property in the United States (for example, if you have a condo in Florida). The site also has the ability to flag potential issues and errors as you go through the process. "We do have warnings that pop up if you're doing something that could potentially result in a challenge for the will," says Hewson.
Mendelovitch says that the main thing about these cheaper, "do-it-yourself wills" — both kits and online services — is that "you're not really talking to anyone in person, so you don't have anyone there who's evaluating what you may need — that maybe you don't even know you need — in your will." For instance, for less than one hundred dollars, LegalWills.ca does offer a lawyer-review service for your documents to offer what Hewson describes as "reassurances, suggestions, recommendations," but that report is provided via email. "We do have [this service] as a safeguard because we do have options that allow people to become quite creative with what they want to put in," says Hewson.
As a second option, there's what Mendelovitch describes as "the discount law firms … where their marketing strategy is, 'We will do this for you cheaper than anyone else.'" A bit more personalized than the DIY options, this option allows you to speak to a person, ask questions and get answers. "Hopefully, they're asking you questions about areas that maybe you didn't think were important but are important." And, if you're working with a lawyer, you'll be covered under their negligence insurance — all lawyers in Canada have to be insured, says Mendelovitch. The main question with this option is whether, considering the discounted rate, you would have as much time as you would like or need with the lawyer, and if they would have the time to ask you as many questions as they should be asking.
If you're able to spend more time and money, the third (and probably most well-known) option would be meeting a lawyer for 30 to 60 minutes. This option allows you to "really go over your assets, your family situation; your relationships; what your plans are for the duration of your life, in terms of estate planning; and then past that, once you're gone, putting in plans to possibly avoid the probate process," says Mendelovitch. It would also involve followup questions, "making sure that you understand everything in the will, and then meeting with you [again] to sign it." With this option, he recommends ideally finding a lawyer whose practice focuses on wills (the law society website is a good place to start). "Family lawyers usually do wills, [and] real estate lawyers usually have a practice in wills because dealing with real estate and planning your estate kind of go hand in hand sometimes," he says. "Litigators often don't do many wills."
Finally, there's the handwritten will. Mendelovitch mentions that technically, if you "write a will by hand in your own handwriting, you don't need any witnesses" to make it valid, but he adds that this option is extremely rare in his experience and that he would "never recommend this [method] to anyone." While writing your will out by hand may be useful in emergencies or in the event that someone is deathly ill, a handwritten will would still need to go through the probate process. "On top of that, it is likely that an individual writing their will out by hand has not had legal advice and may be missing important aspects to the will, [such as] trusts for minors, residue clauses, appointing estate trustees and alternate estate trustees."
What types of situations warrant the services of a lawyer?
Mendelovitch noted that people with complicated personal scenarios, like having dual citizenship, or needing to plan for taxation would especially benefit from working with a lawyer to plan their will. Also, people with complicated family situations, for example, having children with different partners; people needing to define what a 'child' is and who gets what; or people deciding to take a child out of a will, which might be challenged in court.
"95 per cent of my clients who come in, they all think that they have a simple situation, because it's normal, standard family stuff. But there are things that maybe you wouldn't consider if you were just doing one of those will kits," says Mendelovitch. For example, he notes, if you have young children in Ontario, you'll need to think about setting up a trust and decide when they would receive a portion or all of their inheritance because no one in Ontario can inherit property if they're under the age of 18.
What are some questions to ask yourself (or your lawyer) before you craft your will?
According to Mendelovitch, a big decision is deciding who you want your executrix or executor (also called an estate trustee) to be. "It's an administrative role that is a lot of work, and so you want to be thinking about who in your life, even amongst your kids … is the most responsible," he advises. "[They] don't necessarily need a degree in accounting or anything like that, but [you want] someone who gets things done and is somewhat well organized." Then, you'll need to designate an alternate person for the role as well (sometimes banks can act as estate trustees, too, notes Mendelovitch).
With the DIY route, what are some important things to consider?
If you've decided to use a will kit or online will service, the experts have a few tips for choosing one that's more likely to better meet your needs. First of all, says Hewson, avoid any services that are completely free. "I would be wary of a company that's actually too cheap [or] that's free," he says. "There are only certain ways it can be offered as free. It's either not free — like if you enter your credit card and get a 'free' will and then you subsequently find you've been charged or the will's not good — or they're selling your data." Hewson recommends that you look for an established company with good reviews from individuals who have actually used the will and had it go through the probate process.
With kits, Mendelovitch suggests looking for ones "that have a lot of detailed explanation on how to properly sign the will." You should make sure you carefully read the instructions, he says, because your witnesses can't be beneficiaries, spouses of the beneficiaries or the children of beneficiaries.
Truc Nguyen is a Toronto-based writer, editor and stylist. Follow her at @trucnguyen.