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This article provides some information on making a will.
A properly prepared will should do the following: - appoint the person or persons who will act as executors;
- name the persons who will be entitled to benefit under the will (i.e. receive gifts from you);
- direct the manner in which the beneficiaries are to receive their property;
- arrange the transfer of property in such a way that taxes are minimized; and
- provide guardians and protection for minor or incompetent beneficiaries.
If a person dies with a will, the property that he or she owns at death forms part of that person's "estate". As a general rule, the property will pass to his or her executor (the person who has the legal power to administer the estate). The executor administers the estate according to the provisions of the will and the law. Note that the beneficiaries under the will have no right to the assets until the executor is ready to deliver the assets after proper administration of the estate. The executor is a trustee for the protection of all those who are entitled to the estate - including creditors.
All of the above things can be seen as advantages of a will since they serve to fulfill the wishes of the deceased. The only real disadvantages to dying with a will are:
- it is possible that one of the heirs may attempt to challenge the provisions of the will; and
- planning opportunities with respect to protection from legal claims, probate fees and taxation are not as extensive with a will as with some other methods undertaken during the property owner's lifetime such as inter vivos trusts (sometimes called living trusts).
A will is completely revoked if the person subsequently marries (unless the will specifically states that it is made in contemplation of that marriage). Thus making a will right before a marriage is a disaster if it is not done properly. A divorce does not revoke the will completely but does revoke gifts to the former spouse.
Please note that "holograph wills" (unwitnessed wills made in the handwriting of the maker) are not valid in all Canadian jurisdictions: check with a lawyer for details.
Wills must be executed (signed) according to strict legal formalities in order to be valid. If you do not comply with these requirements, the will may be invalid. Also, you should be very careful about altering a will after it is made: see the FAQ on altering a will. |
