Cameron Miranda
Canada's will and estate laws govern the distribution of a person's wealth when they die. These laws are enacted by the different provinces or territories, each with its own unique legislation. The laws outline the validity of wills, intestate succession, and the appointment of executors or administrators to manage the estate. Holographic wills, entirely handwritten and signed, are also recognised in some provinces, though they may not always be valid. The validity requirements for a will in Canada include being written in physical form, signed, and witnessed, though the age requirement may vary between provinces. These laws provide a framework for individuals, families, and businesses to plan the future distribution of their wealth and assets, ensuring a peaceful transition of generational wealth.
| Characteristics | Values |
|---|---|
| Purpose | To pursue a peaceful transition of generational wealth from one person to another, and to prevent any future family disputes. |
| Applicability | Every person – regardless of how many properties they own – is encouraged to create a will or do estate planning. |
| Validity | The will must be written in a physical form, and the person making the will must be of the age of majority and of sound mind. |
| Holographic will | Holographic wills are not valid under BC estate law, but it may be possible for surviving family members to bring a court application asking the court to give effect to a handwritten will after your death. |
| Witnesses | The will must be signed at its end by the will-maker in the presence of two witnesses who are present at the same time, and the witnesses must sign in the presence of the will-maker. |
| Age requirement | The age requirement may differ in some provinces. For example, under BC’s WESA, persons who are 16 years old and above can make a will. |
| Executor | The executor, also known as an estate trustee, is responsible for carrying out the will’s instructions, settling the deceased’s affairs, and managing trusts created in the will. |
| Probate | Generally, wills must go through probate in Canada. However, there are some exceptions, such as when the estate value is C$150,000 or less. |
| Distribution of assets | The will specifies how the estate will be distributed among the beneficiaries and when they will receive their inheritance. |
| Custody of minor children | The will may specify the person's preferences regarding who should take custody of their minor child after their death. |
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What You'll Learn
Validity of wills
In Canada, there is no single federal law on wills and estates. Instead, each province and territory has its own laws on wills, estates, and succession. Therefore, the requirements for a valid will may differ slightly depending on the province or territory.
Under provincial or territorial laws on succession and inheritance, there are two main types of wills in Canada: holographic and notarial. Holographic wills are personally handwritten by the testator, while notarial wills are made with the help of a lawyer or notary. The requirements for the validity of holographic and notarial wills differ, with holographic wills having more relaxed requirements. For example, in Alberta, a holographic will must be written, signed, and dated by a testator who is at least 18 years old and of sound mind. On the other hand, British Columbia's Wills, Estates and Succession Act (WESA) states that a testator must be at least 16 years old to make a will, and the witnesses must be of legal age.
To be considered valid, a will must typically be written, stored in physical form, and signed by the testator at the end in the presence of at least two witnesses of legal age and sound mind. The witnesses must also sign the will in the presence of the testator and each other, and an affidavit must be included stating that the will was signed by the testator and witnesses in each other's presence. In most provinces, the two witnesses must not be among the beneficiaries in the will.
It is important to note that any will can be contested, regardless of how it is created. If a will is contested, it is up to the courts to decide whether the wishes in the will will be upheld. In the case of a person dying without a valid will in place, the provincial or territorial laws on intestate succession will determine how the estate is distributed.
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Intestate succession
In Ontario, the Succession Law Reform Act (SLRA) dictates how the estate of a person who dies without a will is distributed. The Act sets up a scheme to divide the estate, taking into account the value of the estate and the presence of a surviving spouse and/or children. If the deceased had assets worth less than $200,000 at the time of their death, their spouse will be entitled to the entire estate. If the assets are worth more than $200,000, the remainder of the estate after payment of the preferential share will be divided as follows: if there is one spouse and one child, they each get one half of the remainder; if there is one spouse and multiple children, the spouse gets one-third, and the children share equally in two-thirds of the remainder. If the deceased left no spouse, children, or issue living at their death, then their estate is divided among their parents. The preferential share has since increased to $350,000 for individuals who passed away on or after March 1, 2021.
In British Columbia, the Wills, Estates and Succession Act (WESA) governs intestate succession. Under WESA, persons who are 16 years old and above can make a will, but the witnesses must be of legal age. If a person dies without a will, their minor children will inherit at age 19.
In Québec, wills and estates fall under the Québec Civil Code, specifically Book Three on Succession.
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Estate planning
In Canada, there is no single federal law on wills and estates. Instead, wills and estates laws are enacted by the different provinces or territories. In other words, wills and estates laws in Canada, including Powers of Attorney, probate, guardianship, and trusteeship, are under provincial and territorial jurisdiction.
Every person, regardless of how many properties they own, is encouraged to create a will or do estate planning. This is to pursue a peaceful transition of generational wealth from one person to another and to prevent any future family disputes. For this purpose, the wills and estates laws in Canada are a helpful source for testators, decedents, and heirs alike.
A will is a legal document that serves as a roadmap after your death. It sets out your instructions for what you want to be done with your property and money after you pass away and who you want to benefit from your estate. If you have minor children or disabled loved ones, your will can provide your instructions to ensure they receive proper care and financial support. Your will can also be used to express other final wishes, such as your burial or funeral wishes.
You may also choose to include a "living will" in your estate planning, which includes your healthcare decisions, should you be incapacitated. This frees your loved ones from the burden of making these decisions themselves. While a living will is a commonly used term, it is not technically a legal term in Canada. The name of a document to outline your medical wishes for end-of-life varies by province. But it is actually a power of attorney for healthcare, or sometimes called an advance care or personal directive.
In addition to a will, there are other documents you can have in your estate plan, such as power of attorney documents, personal directives, asset lists, trusts, and business succession plans. Making an estate plan helps your loved ones avoid bad guardians, stress, long wait times, and additional legal fees. Without an estate plan, provincial laws dictate how your estate is distributed and who makes decisions on your behalf should you become incapacitated.
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Probate
The specific forms and supporting documents required in a probate application vary by province but generally include the original, signed copy of the will, a death certificate, a list of beneficiaries, and a list or affidavit of the deceased’s assets and liabilities. In Ontario, executors must apply for a Certificate of Appointment of Estate Trustee with the Superior Court of Justice. This document, once granted, gives the executor the legal authority to administer the estate. In British Columbia, the probate process involves submitting an application to the Supreme Court of British Columbia.
The probate process can take some time, and the total length depends on several variables, such as how large the estate is and whether a lawyer is involved for assistance. The total amount of time to get a will probated can take approximately between 10 and 18 weeks, or even up to 6 months.
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Beneficiaries and distribution of assets
In Canada, a will is a legal document that serves as a roadmap after your death. It outlines your wishes regarding the distribution of your property, possessions, and money, as well as who you want to benefit from your estate. You can also appoint one or more persons to have decision-making responsibility for your children if they are not yet adults.
Wills and estates laws in Canada govern the transfer of properties and assets from one person to another. These laws provide a framework for testators, decedents, and heirs, facilitating a peaceful transition of generational wealth and preventing potential family disputes. While there is no single federal law on wills and estates in Canada, each province and territory has enacted its own laws in this area.
When creating a will, you can decide what happens to your entire estate, including naming beneficiaries and specifying what each beneficiary inherits and when they receive their inheritance. For example, you can set up a trust within your will to hold your residual estate on behalf of your minor children until they reach a certain age. This ensures that your children receive proper care and financial support.
It is important to note that in Canada, no person, even those who are expected beneficiaries, are entitled to a copy of the deceased's will, except for the named executor or the lawyer holding the will. When a person is a named beneficiary, they can request a copy of the will from the executor. While beneficiaries can compel the executor to enforce the will's instructions, they do not have any "automatic right" under Canadian law.
The validity of a will is crucial. In Canada, a will must be in writing and signed by the will-maker at its end. It should also be witnessed by two individuals who are both present at the time of signing. The witnesses must also sign the will in the presence of the will-maker. These requirements may vary slightly between provinces, with some provinces, like British Columbia, accepting electronic witnessing of wills. Additionally, the age requirement for creating a will may differ; while the general rule is that one must be an adult, British Columbia's Wills, Estates and Succession Act (WESA) allows individuals aged 16 and above to make a will.
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Frequently asked questions
A will is a legal document that outlines your wishes for the distribution of your estate after your death. It includes instructions for the management of your property, money, and other assets. It also allows you to appoint guardians for minor children and express your funeral wishes.
Everyone is encouraged to create a will, regardless of the number of properties they own. It ensures a peaceful transition of wealth and prevents potential family disputes.
The requirements for a valid will in Canada vary by province. Generally, the will must be in writing and signed by the person making the will (the testator) in the presence of two witnesses, who must also sign. The testator must be of legal age (18 or older) and of sound mind.
If someone dies without a will, also known as dying intestate, the provincial or territorial will and estate laws will govern the distribution of their estate. These laws outline the order of intestate succession, determining who inherits the deceased's property and assets.
An executor, also known as an estate trustee, is responsible for carrying out the instructions in the will. They manage the administration and distribution of the estate, including identifying assets, paying debts and taxes, and transferring assets to beneficiaries.
