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Post image for Drafting a Will | Revoking and Altering a Will…

Revoking a Will

In the next series of blogs, I’m going to be talking about legal Wills. In a previous blog, I talked about what an “estate” is and what kinds of assets / properties go into it and what kinds of assets / properties can be transferred outside of it. And in a subsequent blog, I discussed some of the formalities that are required for a Will to be valid and legal and enforceable in Canada. In this blog, I’ll be talking about revoking and amending a Will.

Keep in mind: this information is not legal advice, but merely provided for educational purposes only.

So here’s the thing about revoking a Will: a properly executed Will is revocable EVEN IF it says it isn’t.  That’s right: all Wills are inherently revokable.  A Will is not a contract.  It’s an expression of someone’s wishes.  And there’s nothing that can be said or done to bind someone to their Will.  Now, with that said, if a Will is revoked but there was a separate agreement with a term or condition that says that the Will cannot be revoked, then the Will CAN STILL be revoked but the estate may be on the hook for any damages or penalties for breaching that term or condition.

Now, there are certain situations in which a Will can be revoked – either on purpose or inadvertently.  In some provinces, for example, unless the Will says otherwise, preparing a Will and then getting married will automatically revoke the Will.  Destroying a Will also revokes a Will.  A Will that is destroyed by someone in the presence of a Testator and by his or her direction and with the intention to revoke it will also revoke a Will.  A Testator / Testatrix who writes something that purports to revoke a Will, with an intention to revoke a Will, and executed in accordance with provincial legislation (e.g. signed in front of 2 appropriate witnesses, etc.) will also revoke a Will.

Altering a Will

Once a Will is executed (signed and witnessed, etc.), it cannot simply be altered by the Testator / Testatrix taking a blue pen and making changes.  To legally alter a Will, there are a few ways to make this happen.  First, the Testator / Testatrix can execute a new Will.  Second, the Testator / Testatrix can execute a Codicil.  A Codicil is an amending instrument to the existing Will which is prepared and executed like a Will but only refers to those parts that are being amended.  Finally, a Testator / Testatrix can take a blue pen and make changes right on the Will, but must sign near the changes in the presence of witnesses (who must also subscribe as witnesses).  These kinds of attestations are usually made in the corner of the page where the changes are made or some of the part of the Will near the changes.  Keep in mind that there is a presumption that any changes made to a Will were made after it is executed; in order to rebut this presumption, the changes must be attested to in the presence of witnesses.

And if you don’t have an up-to-date and comprehensive legal Will, you can get one now by using our proprietary Will-O-Matic Wizard:

Just CLICK “Get Started” button now…

The Will-O-Matic is a very dynamic, comprehensive, and flexible online program that shows you how to write a Will. It has been featured in countless media spots (including the Globe and Mail, CTV News, National Post, and more). Over 20,000 people bought the Will-O-Matic since it was released in 2012. The Will-O-Matic is available for the following provinces:

  • Alberta
  • British Columbia
  • Manitoba
  • New Brunswick
  • Nova Scotia
  • Ontario
  • Quebec
  • Saskatchewan

The first version of the Will-O-Matic was well-beyond anything else out there. And I noticed that some competitors were trying to copy us. That’s a great compliment. But they don’t have what we have. It took countless time, money and effort to make the Will-O-Matic what it is today. And here’s where we stand:

  • The Will-O-Matic is based on provincial Wills laws. I haven’t seen anyone else go to that length. They tell you their product is good for “Canada”, but it’s not. They don’t use the right language. So why risk using their product.
  • The Will-O-Matic is more comprehensive than anything else out there.
  • I (a Canadian lawyer) created the Will-O-Matic.
  • The Will-O-Matic allows you to edit for free for the first year; other products give you a one-shot type of deal (but you can always pay more to edit).
  • The Will-O-Matic comes with comprehensive signing instructions to help you make sure you don’t enter the Will incorrectly and thereby render it invalid.
  • The Will-O-Matic comes with a comprehensive and regularly updated eBook (for Ontario, it’s over 70 pages long!) about Wills in your Province. This just goes to show the level we go to when it comes to putting a high quality product on the market.
  • The Will-O-Matic includes a personal information, assets and liabilities checklist to help you get organized.
  • The Will-O-Matic is regularly updated (particularly when laws change).

So there you have it. A fantastic product that’s only getting better. So if you’re shopping around for online Will products – just remember about the above. We truly are the leader in online Wills in Canada.

How to Make a Will

So, if you’re looking to write your own Will, you can do so using the Will-O-Matic Wizard. This Wizard takes you through an online questionnaire. There’s loads of questions, tips, options, and guidance along the way. At the end of the process, you’re able to download your own .pdf Will.

A Will is simply a declaration of your wishes concerning your property and assets when you die. You can do things like appoint a representative of your estate, appoint someone to be responsible for your minor children, and explain how you want your assets to be divided when you pass (i.e. not according to government rules, but according to your own wishes).

Once you’ve make the Will using the Will-O-Matic Wizard, you must sign it properly in the presence of appropriate witnesses. Then, we suggest you keep the Will in a safe place and give your Estate Trustee access to know it and let him or her know where it is.

written by pmmpa \\ tags: , , , , , ,

Post image for Formal Wills (Part 2): Formalities Required for a Canadian Will to be Valid

Formalities required for a Will to be valid

In the next series of blogs, I’m going to be talking about legal Wills. In a previous blog, I talked about what an “estate” is and what kinds of assets / properties go into it and what kinds of assets / properties can be transferred outside of it.  In this blog, I’m going to discuss some of the formalities that are required for a Will to be valid and legal and enforceable in Canada.  Mind you: provincial laws which govern Wills differ slightly from one province to the next, but they all typically share the same requirements when it comes to writing, signing and witnessing Wills.  So let’s get into it, shall we?

1. In Writing

The Will must be in writing.  No verbal Wills are recognized.  Enough said.

2. Signed at its end

The Will must be signed at its end by the Testator / Testatrix (that’s the person making the Will).

3. Witnessed

The Testator / Testatrix must sign the Will in the presence of witnesses.  There’s a caveat: the Testator / Testatrix’ signature can be made by someone else but it must be acknowledged by him or her in the presence of two (2) witnesses both present at the same time.    For their part, the witnesses don’t have to know what’s being said in the Will.  They must be adults in the Province and they must be of sound mind.  They must witness the Testator / Testatrix signing – typically in blue pen (instead of black) to signify an original signature instead of a photocopy.  After the Testator / Testatrix signs, each of the Witnesses must also sign in the presence of the Testator / Testatrix and the other witness.  So everyone must sign in the same room and preferably using the same blue pen.  Note: a Will can be witnessed by the Executor and Estate Trustee, which is the person named in the Will who is responsible for administering the Will.  A Will can also typically be witnessed by someone who is a beneficiary named in the Will; however, gifts made to them will be presumed to be invalid – so it’s best not to make them witnesses!

4. Age of Majority

The testator must typically be an adult in their province (although there are exceptions to this rule).

5. Holograph Wills

Holograph wills are hand-written by the Testator / Testatrix and are considered to be valid Wills in some provinces (but there are significant limitations to them). Importantly, they don’t need witnesses.  The problem with these types of Wills is that they may be incomplete, drafted poorly, hard to interpret, not account for all situations, and no one may know they even exist.  They can be done in a rush situation with little thought given to things like: tax and wealth planning or what happens if a named Estate Trustee or Custodian / Guardian of your minor child is unwilling or unable to act.  What happens if a Beneficiary isn’t around to receive their gift?  These things are typically contemplated and addressed in a comprehensive formal Will.

6. Wills made under the Indian Act

The Indian Act governs the requirements of Wills for registered Indians and provides that they need not comply with the formal requirements of provincial Wills laws.  Essentially, a Will made by a registered Indian is “any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death”: see section 45(2).

7. Testamentary Capacity

In addition to meeting the formal requirements set out above, in order for a Will to be valid, the Testator/ Testatrix has to have something called testamentary capacity.  What does this mean?  Well, the Testator / Testatrix has to understand that they are making a Will and what the result is, be free of mental disorder, have a sense of the type of property that they have and are disposing of, and be aware of some of the claims that may be made by persons against their estate / Will (e.g. spouses, dependants, etc.).  Now, the Testator / Testatrix need not know every single asset or property they have; but they should have an understanding of the extent of which they are giving to each beneficiary and the nature of the claims of others who are being excluded.  With certain exceptions (e.g. those in the armed services creating a Will or if they is or have been married), minors are presumed to not have sufficient testamentary capacity.

And if you don’t have an up-to-date and comprehensive legal Will, you can get one now by using our proprietary Will-O-Matic Wizard:

Just CLICK “Get Started” button now…

The Will-O-Matic is a very dynamic, comprehensive, and flexible online program that shows you how to write a Will. It has been featured in countless media spots (including the Globe and Mail, CTV News, National Post, and more). Over 20,000 people bought the Will-O-Matic since it was released in 2012. The Will-O-Matic is available for the following provinces:

  • Alberta
  • British Columbia
  • Manitoba
  • New Brunswick
  • Nova Scotia
  • Ontario
  • Quebec
  • Saskatchewan

The first version of the Will-O-Matic was well-beyond anything else out there. And I noticed that some competitors were trying to copy us. That’s a great compliment. But they don’t have what we have. It took countless time, money and effort to make the Will-O-Matic what it is today. And here’s where we stand:

  • The Will-O-Matic is based on provincial Wills laws. I haven’t seen anyone else go to that length. They tell you their product is good for “Canada”, but it’s not. They don’t use the right language. So why risk using their product.
  • The Will-O-Matic is more comprehensive than anything else out there.
  • I (a Canadian lawyer) created the Will-O-Matic.
  • The Will-O-Matic allows you to edit for free for the first year; other products give you a one-shot type of deal (but you can always pay more to edit).
  • The Will-O-Matic comes with comprehensive signing instructions to help you make sure you don’t enter the Will incorrectly and thereby render it invalid.
  • The Will-O-Matic comes with a comprehensive and regularly updated eBook (for Ontario, it’s over 70 pages long!) about Wills in your Province. This just goes to show the level we go to when it comes to putting a high quality product on the market.
  • The Will-O-Matic includes a personal information, assets and liabilities checklist to help you get organized.
  • The Will-O-Matic is regularly updated (particularly when laws change).

So there you have it. A fantastic product that’s only getting better. So if you’re shopping around for online Will products – just remember about the above. We truly are the leader in online Wills in Canada.

How to Make a Will

So, if you’re looking to write your own Will, you can do so using the Will-O-Matic Wizard. This Wizard takes you through an online questionnaire. There’s loads of questions, tips, options, and guidance along the way. At the end of the process, you’re able to download your own .pdf Will.

A Will is simply a declaration of your wishes concerning your property and assets when you die. You can do things like appoint a representative of your estate, appoint someone to be responsible for your minor children, and explain how you want your assets to be divided when you pass (i.e. not according to government rules, but according to your own wishes).

Once you’ve make the Will using the Will-O-Matic Wizard, you must sign it properly in the presence of appropriate witnesses. Then, we suggest you keep the Will in a safe place and give your Estate Trustee access to know it and let him or her know where it is.

written by pmmpa \\ tags: , , ,

Post image for Legal Wills: What is an Estate?

Legal Wills | What is a deceased’s estate?

In the next series of blogs, I’m going to be talking about legal Wills.  Everyone should have one, but they don’t.  Why?  Because people don’t want to be pro-active; they typically want to take care of things when there’s a problem.  Also, people think that when they write their Will, they’ve essentially signed their own death certificate (nothing could be further from the truth; death and taxes are certain, but for the most part no one really knows with certainty when they’re going to pass away).  Finally, people think that they can simply write something down on a piece of paper near their final hours that will be their Will; the problem here is that it might not be valid or comprehensive enough or even followed if it’s not drafted properly to understand.

So, with these things said, the next few blogs are all going to educate you, my fellow Canadian, on all things involving legal Wills.  So let’s get started with some important concepts, shall we?  Yes, let’s start off with: The Estate.

What the heck is an Estate?

When we pass away, our assets form something called an “Estate”.    And these assets (typically cash, real estate, personal belongings like jewelry, art, furniture, securities, vehicles, etc.) are used to pay off our debts, testamentary expenses and the leftovers distributed to our beneficiaries.  Now, it’s important to keep in mind that NOT ALL of our assets go into our Estate.  Certain assets – like jointly held property, proceeds from life insurance, property subject to division under family law, property subject to an equitable claim, gifts of property that are conditional on death, or a refund of premiums contributed to an RRSP, RRIF or pension plan, etc. – do not fall within our estate.   In other words, these types of assets can be transferred outside of our estate.  Why is this good / bad?  Think of it like this: there are tax, debt, and ownership issues that come up when you’re dealing with assets that are transferred outside or inside your estate.

If assets form part of your estate, then they can be sold to pay off your creditors.  If assets do not form part of your estate, then they may go straight to your beneficiaries or some other person pursuant to some other mechanism (e.g. family laws, jointly ownership, etc.).  Assets that do not form part of your estate cannot be used to pay off your liabilities, taxes, or testamentary expenses.

You with me so far?  Good.  In the next blog, I’ll talk about what a Will is and why it’s 100% absolutely necessary for you to have one.

And if you don’t have an up-to-date and comprehensive legal Will, you can get one now by using our proprietary Will-O-Matic Wizard:

Just CLICK “Get Started” button now…

The Will-O-Matic is a very dynamic, comprehensive, and flexible online program that shows you how to write a Will. It has been featured in countless media spots (including the Globe and Mail, CTV News, National Post, and more). Over 20,000 people bought the Will-O-Matic since it was released in 2012. The Will-O-Matic is available for the following provinces:

  • Alberta
  • British Columbia
  • Manitoba
  • New Brunswick
  • Nova Scotia
  • Ontario
  • Quebec
  • Saskatchewan

The first version of the Will-O-Matic was well-beyond anything else out there. And I noticed that some competitors were trying to copy us. That’s a great compliment. But they don’t have what we have. It took countless time, money and effort to make the Will-O-Matic what it is today. And here’s where we stand:

  • The Will-O-Matic is based on provincial Wills laws. I haven’t seen anyone else go to that length. They tell you their product is good for “Canada”, but it’s not. They don’t use the right language. So why risk using their product.
  • The Will-O-Matic is more comprehensive than anything else out there.
  • I (a Canadian lawyer) created the Will-O-Matic.
  • The Will-O-Matic allows you to edit for free for the first year; other products give you a one-shot type of deal (but you can always pay more to edit).
  • The Will-O-Matic comes with comprehensive signing instructions to help you make sure you don’t enter the Will incorrectly and thereby render it invalid.
  • The Will-O-Matic comes with a comprehensive and regularly updated eBook (for Ontario, it’s over 70 pages long!) about Wills in your Province. This just goes to show the level we go to when it comes to putting a high quality product on the market.
  • The Will-O-Matic includes a personal information, assets and liabilities checklist to help you get organized.
  • The Will-O-Matic is regularly updated (particularly when laws change).

So there you have it. A fantastic product that’s only getting better. So if you’re shopping around for online Will products – just remember about the above. We truly are the leader in online Wills in Canada.

How to Make a Will

So, if you’re looking to write your own Will, you can do so using the Will-O-Matic Wizard. This Wizard takes you through an online questionnaire. There’s loads of questions, tips, options, and guidance along the way. At the end of the process, you’re able to download your own .pdf Will.

A Will is simply a declaration of your wishes concerning your property and assets when you die. You can do things like appoint a representative of your estate, appoint someone to be responsible for your minor children, and explain how you want your assets to be divided when you pass (i.e. not according to government rules, but according to your own wishes).

Once you’ve make the Will using the Will-O-Matic Wizard, you must sign it properly in the presence of appropriate witnesses. Then, we suggest you keep the Will in a safe place and give your Estate Trustee access to know it and let him or her know where it is.

written by pmmpa \\ tags: , , ,

Post image for “more comprehensive”

Our Will-O-Matic Wizard was featured in the Globe and Mail.  Here’s the article:

Estate Planning

Wills: Click your way to a no-fuss legacy

ROB CARRICK | Columnist profile | E-mail

Published Monday, May. 14, 2012 7:45PM EDT

Last updated Tuesday, May. 15, 2012 6:46AM EDT

The weirdness about wills must stop.

A will is an instruction manual for your survivors on how to take care of your kids or other dependants, and what to do with the money and assets you’ve accumulated through your hard work. You’d think people would naturally take an interest, but not always.

The people behind TitlePlus, a title-insurance product sold to home buyers, sponsored a recent survey whose results suggest that a little more than half of Canadians don’t have a signed will. The Canadian Imperial Bank of Commerce issued survey results last week indicating that 31 per cent of people between 45 and 64 don’t have a will.

Honestly, people. What gives?

Okay, wills are a morbid topic. That’s part of the explanation of why they’re sometimes ignored or neglected. But cost is also a factor. The latest survey by Canadian Lawyer magazine suggests that a simple will costs $369 on average and a complex will would run just over $1,000. A downtown law firm would quite likely cost you more.

Paying something in the area of $400 seems reasonable for a document as important as a will, but let’s say that’s too much for you. For under $50, there’s always the will kit option.

Try a Google search along the lines of “will kits Canada” and you’ll find plenty of products that you can buy online. What they all have in common is a thumbs-down response from Jean Blacklock, a lawyer who co-wrote a book called The 50 Biggest Estate Planning Mistakes … and How To Avoid Them. “The missing piece in each of them is the connection between one’s own affairs and the law,” she says.

See a lawyer and you get both a will and legal advice. Use a will kit and you just get the will.

One of the latest kits aims to overcome this shortcoming. It’s called Will-O-Matic and it was developed by lawyer Michael Carabash to work much like tax software, where you’re guided through an online process with lots of prompts and information, and print out your documents at the end.

“I was sitting two years ago in front of TurboTax doing my taxes online,” Mr. Carabash recalls. “My cousin said, ‘You should do something like this for legal forms.’ ”

Will-O-Matic was launched in January and has sold 6,000 copies, Mr. Carabash says. The cost if you buy it through his website, Dynamic Legal Forms, is $97 per person, but promotions through online deal networks like WagJag have put the price as low as $24.

Mr. Carabash dismisses 90 per cent of will kits on the market today for being deficient in three areas. One, they don’t reflect the nuances of provincial law (Will-O-Matic works in most provinces).

Two, they’re too simplistic and don’t offer enough options to users. For example, a kit might handle the question of how to dispose of your assets after death by providing boxes into which you’d type a person’s name and a percentage of the assets you want them to get. “But what if I want to do something more than that?” Mr. Carabash says. “What if my spouse dies – where does the money go from there? What if I want to give equally to my children, but one of my children pre-deceases me?”

The third deficiency, according to Mr. Carabash, is that will kits may not use the precise language required for wills to be effective in the hands of lawyers and judges.

Mr. Carabash developed Will-O-Matic out of his work in estate planning for his dentist clients (he specializes in legal services for the dental profession). He started by writing an e-book on wills, then built it into an online will kit that strives to be more comprehensive than the competition.

As comprehensive as Will-O-Matic is, it’s still a will kit to Ms. Blacklock. While she believes there are simple situations where will kits make sense, the user has no way of knowing whether he or she is missing a detail that will cause problems later on.

For that reason, she suggests people use a will kit, then take the completed document to an estate lawyer to have it reviewed. “You could say something like, ‘Your usual fees are $600 – I can’t afford that, but can you review this document for me for $200?’ ”

Will lawyers actually do that? “I think a lot will say no,” Ms. Blacklock says, “but it’s worth taking a crack at it.”

For more personal finance coverage, follow me on Twitter (rcarrick) and Facebook (Rob Carrick).

written by admin

Post image for How to Write a Will

How to Write a Will

Look, if you’re looking to write your own Will, you’ve come to the right place:

Introducing…The Will-O-Matic Wizard

CLICK “Get Started” button now…

The Will-O-Matic is a very dynamic, comprehensive, and flexible online program that shows you how to write a Will.   It has been featured in countless media spots (including the Globe and Mail, CTV News, National Post, and more). Over 20,000 people bought the Will-O-Matic since it was released in 2012. The Will-O-Matic is available for the following provinces:

  • Alberta
  • British Columbia
  • Manitoba
  • New Brunswick
  • Nova Scotia
  • Ontario
  • Quebec
  • Saskatchewan

The first version of the Will-O-Matic was well-beyond anything else out there. And I noticed that some competitors were trying to copy us. That’s a great compliment. But they don’t have what we have. It took countless time, money and effort to make the Will-O-Matic what it is today. And here’s where we stand:

  • The Will-O-Matic is based on provincial Wills laws. I haven’t seen anyone else go to that length. They tell you their product is good for “Canada”, but it’s not. They don’t use the right language. So why risk using their product.
  • The Will-O-Matic is more comprehensive than anything else out there.
  • I (a Canadian lawyer) created the Will-O-Matic.
  • The Will-O-Matic allows you to edit for free for the first year; other products give you a one-shot type of deal (but you can always pay more to edit).
  • The Will-O-Matic comes with comprehensive signing instructions to help you make sure you don’t enter the Will incorrectly and thereby render it invalid.
  • The Will-O-Matic comes with a comprehensive and regularly updated eBook (for Ontario, it’s over 70 pages long!) about Wills in your Province. This just goes to show the level we go to when it comes to putting a high quality product on the market.
  • The Will-O-Matic includes a personal information, assets and liabilities checklist to help you get organized.
  • The Will-O-Matic is regularly updated (particularly when laws change).

So there you have it. A fantastic product that’s only getting better. So if you’re shopping around for online Will products – just remember about the above. We truly are the leader in online Wills in Canada.

How to Make a Will

So, if you’re looking to write your own Will, you can do so using the Will-O-Matic Wizard.  This Wizard takes you through an online questionnaire.  There’s loads of questions, tips, options, and guidance along the way.  At the end of the process, you’re able to download your own .pdf Will.

A Will is simply a declaration of your wishes concerning your property and assets when you die.  You can do things like appoint a representative of your estate, appoint someone to be responsible for your minor children, and explain how you want your assets to be divided when you pass (i.e. not according to government rules, but according to your own wishes).

Once you’ve make the Will using the Will-O-Matic Wizard, you must sign it properly in the presence of appropriate witnesses.  Then, we suggest you keep the Will in a safe place and give your Estate Trustee access to know it and let him or her know where it is.

written by pmmpa \\ tags: , , , , ,

Feb

25

Post image for Protect Your Loved Ones

Without a Will, your property will be divided according to government laws, which may not be in accordance with your wishes.   Your children may also end up with someone less than ideal.  And since you don’t have a say on who gets your property, you won’t be able to make specific gifts of cash, personal property, real estate, etc. to particular individuals or organizations either.  Your loved ones may get involved in court battles concerning the validity of your Will (if you have an invalid / out-of-date Will) or what happens to your property and kids when you pass away.

To see what happens to your property if you don’t have a Will in a particular Province, just click on the link below:

Alberta
British Columbia
Manitoba
New Brunswick
Nova Scotia
Ontario
Saskatchewan

Peace of Mind Starts HERE:

To create your own Last Will and Testament (and don’t forget about creating your Powers of Attorney too!), just click on the image below:

YOU want a Will software:

  • That is based on provincial Wills laws (not something that claims it is good for “Canada” but which doesn’t use the right language or follow the laws of your Province).
  • That is comprehensive enough to take into account your unique situation.
  • That is easy to understand, fast to go through, and affordable (no additional legal fees required).
  • That is created by a Canadian lawyer.
  • That allows you to edit your Will for free for the first year (not just a one-shot type of deal).
  • That comes with a 30-day moneyback guarantee.
  • The comes with a free comprehensive eBook about Wills in your Province.
  • That comes with free signing instructions (to help you avoid making mistakes when signing your Will).
  • That comes with a Personal Information, Assets and Liabilities Checklist (to help you get organized).
  • That is regularly updated (particularly when laws change).
  • That has received lots of testimonials from other customers and which has been featured in national and local media (see below).

And that’s exactly what the Will-O-Matic Wizard aims to deliver.

How the Will-O-Matic reduces the likelihood of court battles

If you have a Will but did not enter into it properly, it may be challenged.  For example, if you don’t have sufficient mental capacity at the time of making a Will, then it is invalid.  Your Will – or part of it – is also invalid if you included something (e.g. a gift to someone) as a result of fraud or pressure or mistake.  If you write your Will and then get married, your Will is automatically revoked.  That is, unless your Will is made in contemplation of your marriage to that specific person.  If you sign your Will without two (2) witnesses, then your Will is invalid.   And if your witnesses are also beneficiaries (i.e. persons you give gifts to in the Will) or the spouses of beneficiaries, then gifts to them will be void.  Any change made to your Will after it has executed (i.e. signed and witnessed) is invalid unless it is executed in the same manner as the Will. If you lose your Will, then when you die you will be presumed to have revoked it!  Finally, if you give a gift of real or personal property to someone in your Will but don’t own that property at the time of your death, then that person generally won’t receive anything!  Now how many Will Kits are out there that adequately educate you along the way and afterwards to help you ensure that you don’t invalidate your Will?  You guessed it: not many!

You can help prevent court battles by using our Will-O-Matiz Wizard.  We educate you along the way (throughout the questionnaire and in the comprehensive eBook that comes with your Will) so that you understand how Wills can be challenged and therefore doing everything within your power to prevent that.  A little education goes a long way!

Alberta

In Alberta, if someone dies without a Will, their property will be divided according to the rules set out in Part 3 of the Wills and Succession Act:

  • If an individual dies leaving a surviving spouse or adult interdependent partner but no descendants, the entirety of the estate goes to the surviving spouse or adult interdependent partner.
  • If an individual dies leaving a surviving spouse or adult interdependent partner AND one or more descendants, then:
    • the entirety of the estate goes to the surviving spouse or adult interdependent partner, if all of the deceased’s descendants are also descendants of the surviving spouse or adult interdependent partner, OR
    • if any of the deceased’s descendants are not descendants of the surviving spouse or adult interdependent partner,
      • the surviving spouse or adult interdependent partner is entitled to the GREATER of the prescribed amount (currently $150,000) or 50% of the net value of the estate, and
      • the rest of the estate shall be distributed among the deceased’s descendants (i.e. children and grand-children and great-grand children, otherwise the deceased’s parents, otherwise the descendants of those parents, otherwise the deceased’s grandparents, otherwise descendants of those grandparents, etc.).

With respect to your minor children, a person can name in their Will who they wish to have as the Guardian of their minor or disabled children and Trustee of their property: section 22 of the Family Law Act, S.A. 2003, c F-4.5 and Minors’ Property Act, S.A. 2004, c M-18.1.  If the Will does not specify a person to be the Guardian of their minor children or Trustee of their share of the estate, then someone will need to apply to the Court to be the Guardian of the child and Trustee of their property.  If no one steps in, then the Public Trustee will step in.

British Columbia

If someone dies without a Will in British Columbia, their property will be divided according to the rules set out in the Estate Administration Act. Sections 83 through to 89 of the Estate Administration Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • entirely to their spouse (which includes a common law spouse), if only their spouse remains alive.
  • entirely to their “issue” on a per stirpes distribution (i.e. one level of descendants at a time and if someone has predeceased, then their next level of descendants would equally inherit their share), if only their issue is alive.
  • Where there is a spouse and issue, the first $65,000 of the value of the estate will go to the spouse and either 1/2 of the residue (i.e. the remaining amount) will go to the spouse if there is only one child OR 1/3 of the residue will go to the spouse if there is more than one child. The spouse is also entitled to the household assets.
  • WITHOUT a surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them);
    • the intestate’s surviving brothers and sisters if there are no surviving parents (note: if a brother or sister is dead, then the children of the deceased brother or sister take the share their parent would have taken if living);
    • the intestate’s surviving nieces and nephews if there are no surviving siblings; and
    • the next of kin of equal degree of consanguinity to the intestate if there are no surviving nieces and nephews.

An estate goes to the government only if no relatives are known or they cannot be found, and if all time limits set by the law have passed.

With respect to your mind children, a person can name someone in their Will to be the Guardian of their minor or disabled children and Custodian of their property (except for their services and earnings): section 50 of the Infants Act,R.S.B.C. 1996, c. 223.  The Testator / Testatrix can also give the Executor powers to pay the Guardian and Custodian. It is worth mentioning that the decision to appoint a certain person as Guardian can be reviewed by a court.  Furthermore, family members can apply to have a decision in the Will set aside.  However, it must be strictly proven that the appointed Guardian is not suitable for the position.  Also worth mentioning is that, if you and your spouse’s appointed Guardians and Custodians are different people, then the Will of the last person to die (i.e. you or your spouse) governs.  Just make sure you realize this!

Manitoba

If someone dies without a Will in Manitoba, their property will be divided according to the rules set out in the Intestate Succession Act, CCSM c I85. Sections 2 through to 7 of the Intestate Succession Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • Entirely to their surviving spouse or common law partner if they have NO issue (descendants of all degrees).
  • Entirely to their surviving spouse of common law partner if they HAVE surviving issue which belong to both of them
  • Where there is a surviving spouse or common law partner AND surviving issue only of the intestate BUT not of the spouse or common law partner, then the first $50,000 of the value of the estate OR 1/2 of the estate (whichever is greater) will go to the spouse or common law partner and then 1/2 of the residue (i.e. the remaining amount) will go to the spouse and the other 1/2 of the residue will go to the issue equally per capita
  • WITHOUT a surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them);
    • the issue of the intestate’s parents, distributed per capita at each generation (in other words, the estate will go to the intestate’s surviving brothers and sisters if there are no surviving parents; note: if a brother or sister is dead, then the children of the deceased brother or sister take the share their parent would have taken if living);
    • the paternal and maternal grandparents (or to the survivor of them) or their issue;
    • the paternal and maternal great-grandparents (or to the survivor of them) or their issue.

An estate goes to the government only if no relatives are known or they cannot be found, and if all time limits set by the law have passed.

With respect to your minor children, naming a Guardian in a Will does not guarantee that person will be chosen if there is a dispute among friends and/or relatives who want to care for the children.  Naming a Guardian in a Will does, however, give the court a clear indication of the parent’s wishes and can carry substantial weight as the court decides who should be the children’s guardian.  That person will still need to apply to the Court to be the Guardian of the child and their property.  They can do this under the Infants’ Estates Act, C.C.S.M. c. I35 and by following Rule 67.02 of the Court of Queen’s Bench Rules, Manitoba Regulation 553/88.

New Brunswick

If someone dies without a Will in New Brunswick, their property will be divided according to the rules set out in the Devolution of Estates Act, R.S.N.B. 1973, c D-9. Part II of the Devolution of Estates Act say that, when a person dies intestate (i.e. without a Will), AND:

  • is survived by a widow and NO issue (i.e. children, grandchildren, etc.), then the widow will receive everything;
  • is survived by a widow and ONE child, then the widow will receive any interest the intestate had in the matrimonial home and ONE-HALF of the residue of the deceased’s estate;
  • is survived by a widow and children, then the widow will receive any interest the intestate had in the matrimonial home and ONE-THIRD of the residue of the deceased’s estate;
  • is DOES NOT have a surviving spouse or issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them);
    • the intestate’s surviving siblings if there are no surviving parents;
    • the intestate’s surviving nieces and nephews if there are no surviving siblings; or
    • the nearest ascertainable surviving relative if there are no surviving nephews or nieces.

    If the Will does not specify a person to be the Guardian of their minor children or Trustee of their share of the estate, then someone will need to apply to the Court to be the Guardian of the child and their property.

Nova Scotia

If someone dies without a Will in Nova Scotia, their property will be divided according to the rules set out in the Intestate Succession Act, R.S.N.S. 1989, c 236. Sections 4 through to 10 of the Intestate Succession Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • Entirely to their surviving spouse if they have NO issue (which will be discussed in greater detail below)
  • If there is a surviving spouse AND issue, then the first $50,000 of the net value of the estate goes to the spouse. The surviving spouse has the option to receive the home instead of the $50,000 where the value of the home is more than $50,000. Once the home and the $50,000 have been dealt with, the residue (i.e. the left over) will be divided between the spouse and the surviving children as follows: if there is only one child, then the residue will be divided equally between the spouse and that child; if there is more than one child, then one-third of the residue will go to the spouse.
  • If there is NO surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them).
    • the intestate’s surviving brothers and sisters if there are no surviving parents.
    • the intestate’s surviving nephews or nieces if there are no surviving siblings.
    • the intestate’s next of kin of equal degree of consanguinity to the intestate.

    If the Will does not specify a person to be the Guardian of their minor children or Trustee of their share of the estate, then someone will need to apply to the Supreme Court to be the Guardian of the child and Trustee of their property.  If no one steps in, then the Public Trustee will step in.

Ontario

If someone dies without a Will in Ontario, their property will be divided according to the rules set out in the Succession Law Reform Act. There is a standard procedure which divides property according to family relationships. Here are some of those rules:

  • If a person dies without a Will and is survived by a spouse without children, then the spouse is entitled to the property absolutely. Worth mentioning is that a spouse is generally entitled to a preferential share under the Regulations made under that Act up to the first $200,000 of the estate before it is divided among any remaining heirs. This basically means that if the estate‘s net worth is $200,000, then the spouse will be entitled to all of it!
  • If a person dies without a will and a spouse and one child survive, then the spouse will be entitled to their preferential share and an additional 1/2 of the residue of the estate.
  • If a person dies without a will and a spouse and children survive, then the spouse will be entitled to their preferential share and an additional 1/3 of the residue of the estate.
  • If a person dies without a will and without any spouse or children surviving, then their living parents will be entitled to the property either equally (or one of them will get it absolutely if only one is alive).
  • If a person dies without a will, without any spouse or children, and without any parents, then their property will be distributed equally among any living brothers and sisters (or their children).
  • If a person dies without a will, without any spouse or children, without any parents, and without any brothers or sisters, then their living nephews and nieces inherit an equal portion of the residue of the estate.
  • Finally, if a person dies and there is no surviving spouse, children, parent, brother, sister, nephew or niece, then the property ―shall be distributed among the next of kin of equal degree of consanguinity to the intestate equally without representation. If a person has no such living next of kin, then generally the estate goes to the government.

With respect to your minor children, a person can name someone in their Will to be the “Custodian” for their minor children and “Guardian” of their property: see section 61 of the Children’s Law Reform Act, R.S.O. 1990, c C.12. You can also give the Estate Trustee powers to pay him or her. A parent is not automatically the Guardian of his or her child‘s property. It is important to note that, whoever is named in your Will as the Custodian and Guardian can only act as such for 90 days from the date of the Testator / Testatrix‘s death: section 61(7) of the Children’s Law Reform Act. During that period, they should apply to the Court for an order formally appointing them as the Custody and Guardian of the Testator / Testatrix‘s minor or disabled children. Also worth mentioning is that, if your and your spouse‘s appointed Custodian and Guardian are different people, then the Will of the last person to die (i.e. you or your spouse) governs.

Saskatchewan

If someone dies without a Will in Saskatchewan, their property will be divided according to the rules set out in the Intestate Succession Act, 1996, SS 1996, c I-13.1. Sections 6 through to 12 of the Intestate Succession Act say that, when a person dies intestate (i.e. without a Will), then their estate will be divided as follows:

  • Entirely to their surviving spouse (which includes common law spouses as defined in that Act) or if they have NO issue.
  • If there is a surviving spouse AND issue, then the first $100,000 plus interest of the net value of the estate goes to the spouse and the residue (i.e. the left over) will be divided between the spouse and the surviving children as follows: if there is only one child, then the residue will be divided equally between the spouse and that child; if there is more than one child, then one-third of the residue will go to the spouse.
  • If there is NO surviving spouse or surviving issue, then the entire estate will be split in equal shares amongst:
    • the intestate’s surviving father and mother (or to the sole survivor of them).
    • the intestate’s surviving brothers and sisters if there are no surviving parents.
    • the intestate’s surviving nephews or nieces if there are no surviving siblings.
    • the intestate’s next of kin of equal degree of consanguinity to the intestate.

    A person can name someone in their Will to be the Custodian of their minor children and Guardian of their property: sections 4 and 30 of the Children’s Law Act, 1997, S.S. 1997, c C-8.2.  Naming a Custodian / Guardian in a Will does not guarantee that person will be chosen if there is a dispute among friends and/or relatives who want to care for the children.  Naming a person in a Will does, however, give the court a clear indication of the parent’s wishes and can carry substantial weight as the court decides who should be the children’s Custodian / Guardian.  That person will still need to apply to the Court for an order confirming his or her entitlement to be the Custodian / Guardian: section 5(1) of the Children’s Law Act.

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