The Comprehensive Guide To How Wills Work In Canada
The idea of creating a will can sound pretty intimidating. But it’s actually much easier than most people think. It’s what happens afterwards that can get complex — from going through probate to the actual distribution process and more. In this article, we’ll go over how wills work and what you can expect the process to be like.
There’s no questioning that wills are incredibly important for making sure someone’s final wishes are carried out — whether that’s specific burial requests or inheritance instructions. But how does one make a will anyway? Can they just type it up on their computer and call it a day? And what happens after they pass away and it’s time for the will’s instructions to actually be carried out?
We talked about this briefly in our article on how life insurance, probate, and wills work. But there can be so many different moving parts when it comes to a will that we introduced this article to go into more depth. Here’s what you need to know about how wills work and how to create a last will and testament in Canada.
What is a will?
A will is a legal document that states what should happen with someone’s property after they pass away. A will, or last will and testament, specifies who will inherit what, and who will be in charge of making sure that happens. Most wills in Canada are Formal Wills, but some people can also have Holographic Wills in rare cases.
The person who makes a will is called the “testator”. The person or institution they name to carry their will out is known as the “executor” of the will. And, like with life insurance, the people who will be inheriting the belongings, assets, and other property through a will are called “beneficiaries“.
Read more about what a will is here.
How does a will work in Canada?
There are several steps involved from creating a will to your loved ones getting your assets after you pass away:
1. A will is drafted
Once someone decides to create a will, they start by creating a draft — which is a fancy way of saying the first version of the document. You can actually do this yourself, or buy an affordable online service. You don’t need a lawyer to draft a will, but it can be helpful to get legal advice.
When a will is drafted, it will name the executor, the beneficiaries who will receive assets/property, the distribution plan of who gets what, and any other final wishes of the person making the will. The will must also be dated and signed by the will-maker and two valid witnesses.
Some provinces require the witnesses to be legal representatives. But, in general, the eligibility criteria for a witness are as follows:
- Must be the age of majority (typically 18)
- Cannot be the executor
- Cannot be the executor’s spouse
- Cannot be a beneficiary named in the will
- Cannot be a beneficiary’s spouse
In most provinces, witnesses have to physically sign the will. But British Columbia allows electronic witnessing of wills.
Your will should also include details about how you want your funeral to be carried out, how you want your personal property and/or assets to be shared and when, and similar information. Not being detailed enough in your will is a common mistake that can lead to issues down the line, so make sure to get it all down!
2. The will goes to probate
After the testator dies, their will is typically filed with the probate court. This is to make sure that the will is valid before any distribution of assets happens. (We’ll talk more about what probate is all about a little later on in this article.)
During this step, the executor named in the will must provide the probate court with a list of the deceased person’s collection of assets and their distribution.
3. Estate assets are distributed
Once the probate court finds the will to be valid, they will give the executor a “grant of probate” that gives them the green-light to go ahead. With a grant of probate in hand, the executor can then carry out the instructions outlined in the document. This may include selling property, distributing assets to beneficiaries, and paying any outstanding debts. This is typically done by transferring ownership of the assets to the beneficiaries, such as by transferring ownership of a bank account or property to the person named in the will.
4. There can be complications
The whole will process sounds pretty straightforward, and it often is. But there are some complications to make note of. For instance, the distribution of estate assets can be subject to legal requirements and even court supervision. The executor may even have to get court approval first before selling certain assets, in some cases.
And, a will can only be used for managing assets that are solely in the deceased person’s name. That means joint accounts are out of the picture. If the individual owned assets jointly with someone else — such as their spouse — that property will not be distributed according to the will at the time of death. Instead, it will be passed directly to the joint owner. Joint bank accounts, for instance, are handled this way.
Similarly, if an asset such as a life insurance policy already has a designated beneficiary, then that asset will also not be distributed according to your will. In this case, it will be passed to the designated beneficiary that was already previously named.
What is probate?
Before a will-maker’s estate is distributed based on the contents of a will, the will must be authenticated. This validation process is called probate.
Probate is carried out by a provincial court and ensures that the last will and testament is the most up-to-date version and meets legal criteria. Probate also authorizes the executor and ensures that the assets listed in the will are eligible to be distributed.
The probate process typically happens after the testator has passed. It’s also during this time that your will can be challenged. After probate, all wills become public documents. So, anyone who requests access to a will upon the will-maker’s death will be able to view it.
Is probate necessary?
It depends. In almost all cases, it is necessary to go through the probate procedure before the will-maker’s estate can be distributed. The process can be lengthy, but it is in place to protect financial institutions against misunderstandings or fraud.
For example, the deceased could have written two wills in their lifetime, each with a different executor. Banks would therefore be at risk of handing over assets to two different executors for a single estate. Probate checks all relevant documents and validates the true will.
Probate can be free of charge, depending on the value of the entire estate. However, in other cases, it will incur a fee that must be paid by the executor. The exact cost and who the fees should be paid to depend on the province. But we’ll go further into that a bit later on.
Do all wills in Canada have to be probated?
Not all wills across Canada automatically have to go through the probate process. The specifics vary by province, but small estates are not always required to undergo probate. It’s also not usually required in circumstances where assets are jointly held, which is common for married people. In these cases, the assets can simply be passed to the surviving account holder.
Additionally, if you live in Quebec, probate is not required for notarial wills (a type of formal will). Handwritten or witnessed wills, however, must still undergo the probate process.
It is also worth pointing out that life insurance policies do not have to undergo probate; benefits are paid directly to your beneficiaries when you die. Life insurance death benefits are also not subject to probate fees.
Read more about why you need both life insurance and a will.
How much does probate cost in Canada?
The cost of probate varies greatly and is generally dependent on the size of the will-maker’s estate and the province in question. In Ontario, for example, probate costs $5 per $1,000 for the first $50,000. For every $1,000 that exceeds $50,000, the rate goes up to $15.
In British Columbia, there are no probate fees for estates under $25,000. But for estates valued at between $25,000 and $50,000, probate fees equal 0.6% of the estate value. This proportion jumps to 1.4% for values above $50,000. Meanwhile, in Quebec, there is a flat $65 fee for probate.
If you’re thinking about setting up a will, you should research estimate probate costs in your province or speak with a professional who can help.
How long does it take to get money from a will in Canada?
In Canada, the processing time for getting money from a will can be around a year or longer. It usually takes up to a year for a will to undergo probate and for administration of estates to be completed. However, in some cases, the process can take longer. If the validity of a will is being challenged in the probate process, it can take years for beneficiaries to receive any inheritance.
What happens if someone dies without a will?
Several things can happen if someone dies without a will. It all depends on the individual circumstance. The deceased person’s estate can either be:
- Distributed to surviving family (the way it’s split up will depend on provincial rules)
- Managed by the government (such as through the Office of the Public Guardian and Trustee)
- A combination of both, based on if a partial will had been in place
We go into more detail about the possible outcomes of this in our “What is a will?” article.
How to write a will
There are a few different options at your disposal when it comes to writing a will. Regardless of which route you choose, there are some key criteria that you should follow.
- Compile a list of assets.
Think about everything valuable you own and would want to pass on after your death, whether to a family member, friend, or via donation. Try to put that all down in writing so that it’s easier for your executor to distribute everything when the time comes. All of those things will make up your entire estate, so it’s important to keep track of it as best you can. Your list should include things like:
- Valuable personal belongings (jewelry, art, antiques, etc.)
- Bank accounts (including savings, RRSPs, TFSAs, etc., but excluding joint bank accounts)
- Investment accounts
- Real estate or investment property
- Vehicles (cars, boats, etc.)
- Liabilities (unpaid debt, estate taxes, the final tax return, etc.)
- Appoint an executor.
This will be the person or people who will organize the distribution of your entire estate when you die. You should tell whomever you appoint that they are your executor, and make sure they know how to access your will. You should also appoint a backup executor in case your primary executor is unable or unwilling to fulfill their duties.
- Appoint a guardian.
If you have minor children or any other dependents at the time of writing your will, choose a guardian that will take on responsibility for them in the event of your death. Guardianship appointment is a serious matter for your family. So, you should also update your will if you have more children/dependents or if you change your mind about who you’d like to be their guardian.
- Specify your burial preference.
While not necessary, you can choose to include your burial wishes in your will. Funeral wishes and requests are not legally binding, but your preference for cremation or burial will be.
- List your beneficiaries.
Once you have an idea of your estate, you can designate your beneficiaries and specify who will inherit what. You are not required to tell someone that you have named them as a beneficiary in your will, as your executor will be responsible for doing this when the time comes. However, if your beneficiaries are close relatives, such as your spouse or your children, you may feel comfortable giving them a heads up — that’s a personal choice up to you.
- Ensure your will is legal.
The eligibility criteria for a legal will is different in each province, so be sure that your will meets the specific guidelines.
- Have an alternate plan.
Planning your wishes down to the tiniest detail is a great idea. But, as we’ve all learned at one point or another, plans can go sour. It’s recommended that you have a backup plan for your will just in case it can’t be carried out according to your original wishes. A “Plan B” can be a trust, a Power of Attorney document, or several other legal actions that can be a failsafe in case your will, somehow, doesn’t work out.
Frequently Asked Questions
Can the executor refuse to carry out a will?
Once an executor has been appointed, that person is legally required to carry out the deceased person’s last will and testament.
But, there is a way they can still back out of it. The executor can resign their position by submitting a formal application to the court to be released from their duty. If there was a secondary executor, the duty to carry out your will would fall to that person. Or, if there is no secondary executor, the executor who resigns may be able to name an alternative executor.
If your executor resigns, the court may appoint a new executor or estate administrator. It may also ask a Public Guardian and Trustee to manage your estate if no other executor, personal representative, court appointee, beneficiary, or anyone else to do so. The Public Guardian and Trustee may also manage your estate if there is a dispute over distribution of your assets.
What happens if a will is challenged?
During the probate process, someone can question whether a will is valid. This is called challenging the will. But not just anyone has the right to challenge a will. Typically, it can only be challenged by someone considered to have interest in the estate. This is usually a beneficiary, spouse, or child of the deceased person.
There are a few grounds on which a will can be challenged, including:
- The testator did not have the mental capacity to make a will
- The testator was unfairly pressured or influenced by someone else to put certain terms into the will (i.e. undue influence)
- The will was obtained fraudulently
- The will had errors, like it was not signed properly or not witnessed
When a will is challenged, a court hearing has to be held to determine if the will is actually valid or not. This can be a time-consuming, expensive undertaking. And, the deceased person’s assets or wishes will not be carried out until the matter is resolved.
If the court finds that the will was invalid, then the testator’s assets will be distributed under the local intestacy regulations mentioned above. This is why we said you might want to consider legal advice when making your will. Scenarios can get complicated and fast.
But don’t let that deter you from deciding to make a will! It’s still a good plan to have in place, and it’s easy to make one with all of the online will kits these days. And if you get some affordable legal advice, that’s even better!
- You can create your own will, use an online service, or hire a lawyer
- Most wills have to go through probate before assets can be distributed
- You write your will, but your executor carries it out