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What Is the Importance of Last Will and Testament?

Do you have a will?

If not, you are not the only one. A recent poll by the Angus Reid Institute found that 50% of Canadians don’t have a last will and testament. 

While most people know they should have a will, they also have many reasons for not getting around to it. According to the Angus Reid poll, the top reasons for not having a last will and testament include:  

  • Feeling too young to worry about it
  • Don’t have assets to worry about
  • Too expensive to get a Will 
  • Too time-consuming to get a Will
  • Don’t want to think about dying
  • Don’t want to discuss this topic with a stranger

These are all legitimate reasons to avoid creating a will, but you have to think about what happens when you do not have one. In this article, we explore why a will is so important and what you can expect if you don’t have a last will and testament when you die.  

We’ve all heard that we need a will but do we know why? This podcast delves into the importance of having will and what happens when you don’t.

What is a Will and Why is it Important?

A last will and testament is a legal document that:

  • Names the guardians of your children if both parents are no longer living
  • Directs who will inherit your assets
  • Names the executor who will handle your estate 

For many people, having children is when you start to think about your own mortality and what will happen if you aren’t around. It’s one thing to consider where your belongings will go when you die, but it reaches another level of importance when it comes to planning what will happen to your kids. A will ensures that you have a say in who will care for your children when you’re gone. 

A will also determine where your assets will go. By clearly defining who gets what in your will, it can help to prevent fighting among family when you are no longer around. 

To ensure your dying wishes are met, you need to assign an executor. This is someone that you choose to carry out the instructions of your last will and testament. Depending on the size and complexity of your estate, this can be a significant task for someone to take on. 

An executor is responsible for gathering up your assets, paying off any debts you have, and then dividing the remaining assets among the beneficiaries (people who will receive something from your estate).

When Should You Get a Will?

Since one of the main barriers to getting a will in Canada is feeling “too young,” you might question when it’s the right time to start the process. 

In Canada, you can legally get a will as soon as you reach the age of majority in your province or territory. However, for most 18 or 19-year-olds, creating a will is not at the top of their “to-do” list. 

One way to determine when you should consider getting a last will and testament is when you experience large life changes. This can include getting married, having children, or purchasing a home. Similarly, if you inherit valuable family heirlooms, you own investments, or you start a business. 

What Happens if You Don’t Have a Last Will and Testament in Canada

The term “intestate” refers to a person who dies without a will. Without a will, it’s up to the court to appoint a representative for your estate who will decide who becomes the caregiver of your children, and who gets your assets. Every province and territory has different intestate legislation on how your assets are split and how your estate is dealt with.  

Without a will, common-law spouses and stepchildren are not considered heirs in provincial legislation. This means they don’t automatically inherit your assets and may have to fight to get what they deserve. It’s only if you are married, have legally adopted your stepchildren, or have biological children that the province will recognize you. Without a will, (and without an executor) A friend or family member would have to apply to the court to become the personal representative of your estate, and this can take some time, making things more stressful for the family.

Another consideration is if you have RESPs set up for your children. Without a will, these won’t necessarily go to them. This is because the RESP belongs to the parent. If both parents pass away, the RESP becomes part of your general assets. If you owe money to a creditor, you can lose the money you’ve set aside for your children’s education, as the creditor will take precedence. 

Having a will in place ultimately prevents your loved ones from going through the stress of dealing with assets, debt and other estate matters while they are also mourning. 

Where to Get a Will

If you’re thinking about getting a will, another pinch point might be deciding where to get it. If cost is an issue, working with an estate lawyer might not fit your budget. For a more cost-effective solution, you can consider a Will Kit.  

A Will Kit generally contains everything you need to prepare a legal will, including a Canadian last will and testament template. You can find these online or at stores like Staples. 

For those with a straightforward situation with limited investments, and no trusts or complicated family issues, then this may be an option.  However, if you go this route, make sure you read through everything carefully to ensure the will stands up in court. If the document is not properly executed, this leaves it open for someone to contest your will. 

If you have a more complex financial or family situation, you should consider working with an estate lawyer. This gives you a chance to ask questions and also provides peace of mind that your will, will be valid. 

Why Is It Important to Have a Will in Canada?

If you’re still asking “Why is a will important,” the bottom line is that it gives you a say in what happens to the assets you’ve worked hard to own. If you have children, a will ensures you have a say in who will care for them when you are gone and whether they will receive any inheritance. Also,  according to Canada’s inheritance laws, If you’d intended to leave some money to a close friend, a distant relative or even a charity, this won’t happen if you die without leaving a will.

Ensuring you have a will and testament in place can also prevent fighting between your loved ones. Family dynamics are complicated and when dealing with grief, family members can often cause conflict after you pass away. A clearly drafted will helps to ensure there is no ambiguity around your wishes when you are no longer there to express them for yourself. 

Speak to a Licensed Insolvency Trustee

Many people want to save money and keep their assets so that they have something to leave their children and/or spouse. If this is a goal you have, but it feels unattainable due to the state of your finances, reach out to a Licensed Insolvency Trustee (LIT). They know that financial issues can cause stress and will listen to your situation so that they can give you the right advice.

An LIT can assess your finances and if needed, help you find a debt solution that will get you back on track. You don’t have to deal with your debt alone, at Allan Marshall & Associated we are here to help. Give us a call at 1-888-371-8900 for a free, no-obligation consultation, or fill out our online contact form. We look forward to helping you.

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Francyne Myers, JD, CIRP, LIT

Francyne spent many years in senior positions with the Office of the Superintendent of Bankruptcy. During the course of those years, she also found time to study Accounting at Saint Mary's University and attend the Schulich School of Law (formerly Dalhousie Law School) to earn her degree in law (J.D). In 2012, Francyne left public service life and joined Allan Marshall & Associates Inc. where she completed her education becoming a Licensed Insolvency Trustee in 2013. She is actively involved in her local Trustee Association and enjoys helping others find solutions to their financial problems.