Wills and Estates – The Basic Structure of A Will
Published on 29 August 2022, 07:22:56 AM
Wills and estates in Ontario are governed by a number of laws. These laws detail everything from how your will must be written, signed, stored, and more. This article serves as a basic guide on everything you need to know about your will and how to distribute your estate. You’ll find there’s a lot of legal jargon involved in the will-making process. We provide definitions for all of the important terms here so that it’s easy to understand. wills and estates law in Ontario concerns a number of things including wills, powers of attorney, living wills and related estate planning documents. A will is one of the most important documents and it should never be neglected, therefore, we’ll focus on this document in the article below.
How To Make a will?
Most wills share a similar general structure in dealing with your estate and listing a number of other important items. Depending on your circumstances, you may need to add extra clauses for a more complex will or eliminate certain sections to make for a simpler and more straightforward will. There’s no “recipe” for writing a will, so it doesn’t have to follow a specific, prescribed form. However, it does need to address certain points in order to be considered valid. The most fundamental points that your will must address are as follows:
Name and Personal Information
This is fairly well known, but your will must make clear who is the testator (the person making the will). So, to avoid any confusion your will should state your full legal name, as well as any married names or names that you commonly go by. Additionally, some wills may state other personal information such as occupation or place of residency.
Revocation of All Previous wills
If you’re making a new will, you have to make sure it doesn’t get confused with any previous wills or codicils (amendments to a will). The last thing you want is for the courts to consider two or more conflicting wills upon your death. So, having this statement automatically cancels anything you included in a previous will.
Appointing an Estate Trustee
A personal representative, estate trustee, or executor is the person you name to carry out the terms of your will and administer your assets.
- So, what does an executor do? An executor’s job is no easy task – they may be responsible for things like arranging your burial, tracking down the beneficiaries you’ve named in your will, probating your will, paying off debts, paying taxes, distributing your assets and more. Their role is crucial – if you don’t name an executor your will is of no effect, so appointing someone you trust is a key part of your will.
How to Deal With Your Estate
Your estate is the term used to describe any assets and liabilities you’ve left upon your death. Distributing your estate is the main chunk of your will and the reason most people make one to begin with as you choose who will inherit your assets. You can name family, friends, and even charities or organizations as beneficiaries in your will. Unfortunately, you can’t name any pets as beneficiaries, but you can name who you want to take care of them. It’s also a smart idea to name an alternate beneficiary – the person who will inherit your gift if a primary beneficiary predeceases you.
Residue Clause
As the name implies, this is a clause that dictates who should inherit everything that’s “left over” once all of your specifically mentioned gifts have been distributed and debts paid off. It also covers anything not listed in your will. So, if you accumulate assets after making your will (which is likely), those assets will go to whichever person or persons you’ve named to inherit the residue of your estate.
Execution of the will
You’re making a formal, legal will (which is highly advisable by most legal experts). It should be dated and signed at the bottom by yourself and by two witnesses. Your witnesses may also sign an affidavit of execution, which includes the sworn statement that they witnessed you signing the will. If you’ve handwritten your will start to finish (which most legal experts will say is not advisable), then no witnesses are required, but it must still be signed by you.
Will Dictionary – Understanding All of the Terms In Your Will
While reading through the basic structure of a will you probably noticed that wills often contain confusing technical terms that may be difficult to understand. However, since your will is such an important document, it’s imperative that you understand your will like the back of your hand. Luckily, a quick look at some of these terms and their definitions will improve your overall understanding of wills and make you more confident in the will-making process.
Testator: The testator is the individual making the will. The term testatrix is sometimes used to refer to a female testator.
Beneficiary: A beneficiary describes someone who is receiving something. In the case of a will, it’s anyone who is receiving a gift or distribution from the testator. There can be many beneficiaries ranging from people to organizations.
Common beneficiaries include:
- Spouse
- Children or grandchildren
- Other surviving relatives
- Non-profit organizations
- Friends
- Charities
Unfortunately, because your pet is considered your property, and thus, part of your estate, they cannot be a beneficiary. That being said, you should definitely leave instructions for their care and money for pet-related expenses in your will.
Devisee: A devisee refers to a beneficiary who is specifically receiving real estate as a gift from the testator.
Bequest: This is the term used to describe a gift of personal property left for a beneficiary. For example, one might say “I bequeath my 2017 Honda Civic to my grandchild”.
Residuary Estate: After all your bequests and expenses are dealt with, whatever is left over (which you did not specifically leave to someone) forms your residuary estate.
Executor: Often referred to as an estate trustee or personal representative, an executor is the person who will be executing the will. Sometimes, a female executor is referred to as an executrix. They are named by the testator and will carry out the terms of the will while administering the testator’s estate; and yes, your executor can also be a beneficiary in your will!
In Canada, there are two main types of wills:
Attested/Formal wills: An “attested” will refers to a will that is signed by the testator (yourself) in front of two witnesses who also sign the bottom of the will. It’s worth mentioning that the witnesses to your will cannot be beneficiaries and its inadvisable to have your family members act as one.
Holographic wills: Less formal than an attested will, a holographic will is one that is handwritten, signed, and dated by the testator and does not require any witnesses. While these wills are the simplest, they are often challenged and deemed invalid if they are unclear or do not address important legal details. As such, legal experts typically advise against them and suggest attested wills are the superior choice.
Wills and Estates Lawyers Are Here to Help
Hopefully this guide has taught you the basic ins and outs of a will and helped you see that making one can be complex and sometimes confusing. Since virtually any will can be challenged in court, it is advisable to have a lawyer draft your will and provide you with a full legal consultation so that risks and common pitfalls can be avoided. Experienced wills and estates lawyers are available to help you, so take advantage of the peace of mind knowing your will is complete and valid.
