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| Definition of a Will | We have provided some information for your interest, but strongly encourage that you consult a legal expert before taking any action |  | |
Multiple Wills |
What is a Will?
From Wikipedea, an on-line dictionary, useful for checking out terminology so here is what they say. In the common law, a will or testament is a document by which a person (the testator) regulates the rights of others over his or her property or family after death. For the devolution of property not disposed of by will, see inheritance and intestacy. In the strictest sense, "will" is a general term, while "testament" applies only to dispositions of personal property (this distinction is seldom observed). A will is also used as the instrument in a trust.
Multiple Wills
There is a growing interest in the use of multiple Wills to avoid probate fees. For example, if the only asset described in a Will is a closely held corporation, it may be possible avaid probating that Will saving many dollars. The second consideration in multiple Wills relates to assets held outside of Canada. Sometimes a separate Will may be appropriate. Once again, your legal and accounting advisors should be consulted.
Will Kits
Lot's of advertising is being expended on "Lawyer Approved" Will Kits. My legal friends tell me they should be approached with caution in the sense that clarity of purpose is of paramount importance and sometimes, consumers will try to take the "short-cut" when they should have sought legal advice
What happens if I die without a Will?
If you die without a valid Will your estate will be divided according to the laws of your province that govern the distribution of estate property. If you have no Will and no living family members your estate vests in the Provincial Government. If you die without a Will but leaving relatives, the law will apportion your assets among your immediate family.
This will entail :
a) appointment of administrator of your estate,
b) identification of those among your family to whom your assets will devolve and what their respective portions will be and
c) establishing the age at which any minor beneficiaries might inherit .
The court-appointed administrator acts as the estate executor and has the power to deal with all debts and assets of the deceased. Until an administrator has been appointed no action will be taken on behalf of your estate. The administrator will pay the debts and expenses arising from the disposition of the estate before any distribution to heirs.
Division of Assets under Intestate Succession
The laws of each province are specific regarding the division of property when a person dies without a Will. Most provinces designate a spouse’s share - a portion of the estate that will automatically devolve to the surviving partner. Other family members - children for example - are provided for only if the value of the estate exceeds the spouse’s share.
Spouse’s Share by Province/Territory
Alberta $40,000, British Columbia $65,000, Manitoba $50,000, Northwest Territories $50,000, Nova Scotia $50,000, Ontario $200,000, Prince Edward Island $50,000, Saskatchewan $100,000.
If a person dies without a will the estate would be distributed as follows : if spouse and no children, then all to spouse ; if spouse and 1 child, the spouse’s share is distributed and the remainder is split 50/50 ; if spouse and more than 1 child, the spouse’s share is assigned and the remainder split 1/3 to spouse and 2/3 to all living children equally ; if no spouse, then all to children equally ; if no spouse or children then the estate goes to parents equally or all to the surviving parent. If there is no spouse, children or parents, the estate goes to siblings equally ; if no siblings then estate goes to nieces and nephews equally.
A Holographic Will
A holographic will is a will and testament that has been entirely handwritten and signed by the testator. Normally, a will must be signed by witnesses attesting to the validity of the testator's signature and intent, but in many jurisdictions, unwitnessed holographic wills are treated as valid as witnessed wills and need only to meet minimal requirements in order to be probated:
- There must be evidence that the testator actually created the will, which can be proved through the use of witnesses, handwriting experts, or other methods.
- The testator must have had the intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.
- The testator must be expressing a wish to direct the distribution of his estate to beneficiaries.
Holographic wills are common and are often created in emergency situations, such as when the testator is alone, trapped and near death. Jurisdictions that do not generally recognize unwitnessed holographic wills will accordingly grant exceptions to members of the armed services who are involved in armed conflicts and sailors at sea, though in both cases, the validity of the holographic will expires at a certain time after it is drafted.
