Considerations when updating or creating a Will
Whether you’re writing your Will for the first time or giving it an update, this checklist can help ensure your wishes are respected.
Originally published September 2020
A Will is a legal document that captures your wishes and intentions for your property. Unfortunately, small mistakes can cause big headaches. Laima Alberings, a Tax and Estate Planner at TD Wealth, says one of her first suggestions to those who want to make a Will is to avoid using a make-your-own-Will kit or worse, attempting to write one yourself.
With so many assets at stake and the well-being of your loved ones at risk, it is worth the extra effort and money to do it right when you create one and also when you update.
“I’ve seen too many Wills made by people who used Will kits or tried to do it themselves. Improperly written Wills or those signed without proper witnesses, for example, can be invalid.”
If you’ve decided to make or update your Will, here is a checklist to consider.
Use a lawyer whose practice is Wills
Alberings says there are a lot of lawyers available, but in her opinion it’s best to work with someone whose practice is dedicated to Wills and estate planning. The right lawyer with the right expertise will be able to help you write a Will that records your last wishes properly and includes all the necessary details.
Get your name right
Yes, it sounds simple but include all the names you are known by. This includes your legal name, shortened forms or variations you have used on banking documents or legal documents, as well as Anglicized versions you may have used if you immigrated to Canada. That way, your estate will be able to prove you are the right person, even if any account has a variation of your name attached to it.
Revoke older Wills
You may have made Wills previously, perhaps with other lawyers and maybe in other countries. A clause revoking those Wills negates them and limits any complications. If you do not wish to revoke a prior Will, it is important you note the presence of your other Will to your lawyer so they can carefully draft your new Will.
Choose an appropriate executor and guardian for your children
The executor of a Will is charged with administering your estate and ensuring your intentions are fulfilled. Most people choose a close relative, but Alberings suggests that more thought should be put into the selection. She says the executor of your estate should be competent and willing at the time of your passing, therefore, a sibling may not be appropriate if you pass away in your upper years and your executor is of a similar age. She also says that the executor should ideally reside locally.
If you have minor children, you need to designate a guardian and the same concerns should be applied here. A guardian should also share the same attitude toward lifestyle and education that you do. Note that the courts ultimately decide who will be guardian, although your stated preference carries weight. Be aware that other people can make competing applications to be guardian.
Make a trust for those who are vulnerable
If you have minor children, consider setting up a trust to help manage the money you pass over to kids. Not only should you appoint a responsible trustee, but the trustee can also offer ideas on when and how funds will be transferred to your children once they are mature enough to manage their inheritance. One thing to consider is at what age a young adult should receive their inheritance: You probably don’t want them to have the burden of large sums of money as soon as they turn 18 but you also may want to ensure that their accommodations and education are looked after.
Similarly, if you have a child with a disability or someone you are responsible for, you should consider preparing a trust that can care for them for the rest of their life. Since the responsibilities are large, with minors or with people with disabilities, you may wish to consider getting help from a trust company to ensure these people are looked after as well as possible.
Always have a backup plan
Once you have picked an executor and a guardian, pick alternates in case anything should happen to your first choices. Alberings says that you should also consider alternate plans for all your decisions in your Will in case circumstances change. So, you will also need an alternate trustee if you include a trust and alternative plans for your heirs if they die before you.
Be specific about personal items
While the bulk of your estate may be money, it is the family heirlooms like wedding rings or war medals that may provoke the most emotion and conflict from your heirs. Alberings recommends first having a family discussion and discuss who exactly gets what. Secondly, she says people should include a personal effects memorandum with their Will which accurately describes each item so that any possible resentments are headed off.
Think about how to deal with property
While everyone’s situation is different, it is often the vacation properties or summer homes which can cause dissent among family. Your heirs may not want to maintain the family cottage — or perhaps can’t afford to — or they may not want to share ownership with other family members. Again, Alberings suggests having a family meeting to see how everyone involved feels and if a solution can be found while you’re still alive.
Give heirs shares
Dividing up the rest of the estate can get complicated if you apportion cash amounts to heirs: What happens if the estate does not have enough funds for the heirs by the time you pass away? What happens if an heir predeceases you? Alberings says the best way forward may be to allot shares to your primary heirs. That way, after taxes, debts, expenses and legacies have been paid, what remains can be divided into shares for each heir.
Make a Power of Attorney while you are at it
A Power of Attorney (POA) is a legal document that gives someone of your choice certain control over your financial and legal affairs if you need help or become incapacitated. You don’t need a POA to complete your Will, but you often have to make similar decisions for these documents. Why not get them all done at the same time while you’ve booked your lawyer?
Ensure you coordinate with your spouse or partner
Your spouse or partner’s Will doesn’t necessarily have to be a duplicate of yours, but you don’t want them to have conflicting statements if you own assets jointly. Ensure that you are both on the same page. A lawyer can help ensure that both of your intentions are reflected in your Wills so that events proceed smoothly.
Get organized around complex families
Second spouses or partners, children from a second marriage, step children and common-law relationships can make Wills complicated. Make it clear in your Will who are the primary heirs and what should happen if anyone should predecease you. As an example: If you want to divide your estate among your children and stepchildren, but your Will merely states “children”, then your stepchildren might not benefit. Family law varies province to province and your lawyer will be able to help ensure that what you want in your Will won’t conflict with these rules. As well, each province treats common-law relationships differently. Make sure that you work with a lawyer so your stated intentions are meeting your legal obligations and will effectively be carried out.
Remember foreign assets
If you have a vacation property in the United States, it might be best to have a Will prepared in the state that the property is located. Each jurisdiction has its own laws around estate administration and taxation, and Alberings says things may go smoother if you have documents prepared in each jurisdiction you own assets.
Consider pet care
While you can’t leave money directly to your pet, but you can make provisions so that they’re looked after. That often involves naming someone in your Will who will take your pet, as well as providing funds to that person to feed and care for your pet after you’re gone.
Remember your digital life
Alberings says this is increasingly an area of concern for people and their heirs. You may, for example, have assets in a PayPal account that someone may need to access after you die. You may also wish to consider whether you want your social media accounts to simply disappear or if you’d prefer for someone to create a digital memorial. What do you want done with all your digitized photos or music? If you care about what happens to your digital assets, make sure it’s dealt with through your estate plan or Will.
“Thinking about having a Will prepared can make you uncomfortable and force you to make tough decisions. But the document is an expression of your feelings for your loved ones and what matters most in your life,” says Alberings. “Not having a Will prepared, or having one done improperly, could result in increased costs for your estate and have a negative impact on the people you are trying to benefit and the goals you are trying to accomplish through your estate plan.”