Ultimate Guide to Writing Your Own Will
“Do I have to pay a lawyer to draft a will?” If you’re reading this, chances are you’ve asked yourself this question.
Well let me reassure you; you really don’t. The toughest thing about drafting your own will is navigating through the legal requirements, technical jargon, and the ocean of rules and regulations. If you screw up your taxes, you can always go back and correct it; but if you screw up your will, there are no do overs for obvious reasons.
That’s why we’ve set out to create the most comprehensive guide to will-writing on the internet that’s simple to follow so that anyone can draft a legally recognized will. That being said, let me preface this by saying: we would still recommend you to see an estate attorney if your estate situation is complex. This is a guide for people with relatively simple estates that would like to save on costs.
We want to make sure our information is accurate. Therefore, we read the Law Society’s Professional Legal Training Course material so you don’t have to.
Why Even Write a Will? The Importance of Estate Planning
Before we get into the nitty gritty, it’s important to understand why having a will is so important.
If someone was to pass away without a will, that person is said to have died intestate. In the case of a person passing intestate, their estate will be distributed based on preset statutory rules.
Here’s why passing without a will might not be ideal for you:
- Risk of beneficiaries being disqualified from assistance programs
Since you have no control over how your estate will be distributed, the result might disqualify your beneficiaries from assistance programs.
Here is an example: Your spouse was on BC’s income assistance program. If you pass without a will, the statutory rules of intestate allocated $50,000 to your spouse, increasing their assets past the income assistance eligibility threshold. Your spouse gets removed from income assistance.
- Risk of unfavorable asset distribution in other jurisdictions
If you’re someone who owns real property in other provinces or countries and you pass without a will, the assets you own in other jurisdictions will be distributed according to the rules of that specific jurisdiction which may not be ideal.
- Your estate may not be allocated to the beneficiaries who need it most
If you have children or other beneficiaries, your spouse will not be entitled to the entire estate according to the rules of intestacy. This may be troublesome if your spouse needs significant support from the estate. Here is a chart of how your assets would be distributed according to the rules of intestacy:
| Dies Leaving | Distribution |
| Spouse and no descendants | Entire estate to spouse |
| Spouse and descendants of intestate and spouse | to spouse: preferential share of $300,000; furnishings of spousal home and right to acquire spousal home from estate for 180 days after representation grant residue: half to spouse; half to intestate’s descendants pursuant to |
| Spouse and descendants of intestates but not spouse | to spouse: preferential share of $150,000; furnishings of spousal home; and right to acquire spousal home from estate for 180 days after representation grant residue: half to spouse; half to intestate’s descendants pursuant to |
| More than one spouse | spousal share divided as the spouses agree or as determined by the court |
| Descendants but not spouse | equally among the descendants, pursuant |
| Parents but no descendants | equally to surviving parent or parents |
| Descendants of parents (deceased’s siblings) but no parent of descendants | equally to the descendants of the intestate’s parents or parent |
| grandparents or descendants of grandparents (deceased’saunts, uncles, cousins) but no descendants, parents, or descendants of parents | equally to surviving grandparent(s) or, if any grandparent is no longer surviving, that part to descendants of the deceased grandparent |
| great-grandparents ordescendants of great grandparents, but nodescendants, parents,grandparents, or descendants of grandparents | equally to surviving great grandparent(s) or, if any great-grandparent is not surviving, that part to descendants of the deceased great grandparents |
Here is an example of how assets will be distributed if a person passes intestate:
- Loss of distribution control if you have a sole successor
If you pass without a will and have a sole beneficiary who is a minor or is mentally incompetent, the Public Guardian and Trustee will have to be notified and may take over the responsibility of your estate distribution. This not just results in you losing control of how you want to distribute your estate, it also results in additional costs.
- Avoidable taxable gain and liability for estate tax
Assets that can roll over to your spouse on a tax deferred basis generally can’t roll over to your children on a tax-deferred basis. So in the case that someone passed away without a will, the asset allocations according to the statutory rules might mean extra costs in the form of taxable gains and liability for estate tax.
- Guardian for minor children
If you pass away intestate, you lose the ability to select a guardian for minor children (unless you’ve already done so under the family law act) which can be unfavorable for your child depending on who the court appoints as a guardian.
What to Include in the Will
Now that we’ve talked about how important it is to have a will, we can go over what elements are mandatory to include in a will.
- Preface
The preface paragraph needs to identify who you are and confirm the intention that the will is intended to be your last will.
Ex.
- Revocation of all former wills
Since the court only recognizes the most updated will, it’s imperative to include a paragraph specifically stating that you intend to revoke all previous wills as well as the date of this current will.
Ex.
- Appointment of executors and trustees as well as alternatives
An executor is someone that you appoint to handle your estate and carry out your will after you pass. A Trustee is someone who manages specific trusts for you. It’s a good idea to list out your executors and trustees as well as 2 or more alternatives in case they are unwilling to act or continue to act.
Ex.
- Appoint Guardians
Passing away with minor children is one of the most worry-inducing situations to be in. Everyone wishes to pass away knowing that their children will be properly taken care of. Make sure to include a section appointing guardian(s) as well as 2 or more alternatives just to be safe.
Ex.
- Gifts
This is probably the most important part. In this section, you list out how you want to distribute your assets amongst the beneficiaries. Try to be as comprehensive and specific as possible to ensure your will gets carried out as you intended.
Ex.
- RRSP/RRIF, debt, or life insurance beneficiary designations
Outline how to allocate your RRSP/RRIF accounts and life insurance payouts if any. Then include how to deal with debt like funeral expenses, income tax, and estate related taxes as well as which trustee you would like to handle this task.
- Administrative powers
In this section, you may grant your executor specific administrative powers. Couple examples are:
- The power of sale
- The power to compromise claims of creditors
- The power to value and distribute property
- The power of investment
- The power to borrow, secured by mortgage or pledge
- The power to manage real estate
- The power to make income tax elections and designations.
Ex.
Conditions for a Will to be Recognized in Court
WESA Technical Requirements
WESA (Wills, Estates, and Succession Act) has set some requirements for a will to be considered valid:
- The will must be in writing
- The will must be signed at its end by the will-maker (or by another person in the will-makers presence and by the will-makers direction)
- The will-maker must make or acknowledge the signature in the presence of two or more witness who are both present at the same time
- Two or more or more of the witnesses must sign the will in the presence of the will-maker
- The will-maker must be at least 16 years of age
*WESA has recently broadened the meaning of presence to include remote signing where parties are in each other’s “electronic presence”
Legal Requirements
Now for the most important part. No matter how perfect and comprehensive your will is, it means nothing if the court does not recognize it to be legal. When that happens, your assets will be distributed as if you passed away without a will, so we want to make sure we get this right. Here are the conditions for your will to be recognized in court according to the Law Society:
- Will-maker must have intended the will to have a dispositive effect
Dispositive is basically a fancy (legal) way of describing “the intent to settle a claim, legal issue, or controversy”. So this condition means that the will-maker must intend for the will to serve the purpose of a will.
- Will-maker must intend for the will to not take effect until after death and be entirely dependent on death for its operation
This one is pretty self-explanatory.
- Will-maker must intend for the will to be revocable
This means that the will-maker must understand that the will can be altered or canceled and intend for the will to be so.
- Will-maker must have executed the will in accordance with the formal requirements of WESA
These are the technical requirements we went over in the above section.
Testamentary Capacity
In addition to following the technical and legal requirements, WESA also requires the will-maker to be mentally capable in order for the will to be considered valid. To be mentally capable of making a will means:
- The will-maker must understand the nature of the act of making a will and should intend to make a disposition of property effective on death
The person writing the will must understand that the document is intended to resolve claims, legal issues, or controversy of their property after your passing. The will is not valid if the will-maker was coerced or manipulated into making it.
- Will-maker must be free of mental disorder
Victims of mental disorders such as Alzheimer’s, dementia, and schizophrenia are deemed as not having the testamentary capacity to create, amend or revoke a will. You will still be able to do these things if you are diagnosed early enough and you are deemed to have testamentary capacity by a medical professional. If your family history has proven you are prone to these mental disorders, it is advised to make a trusted person as your POA (power of attorney) so that if the time comes, they can make amendments for you.
- The will-maker must know the nature and extent of their property
You must have a general understanding of the property you own. Don’t worry, the court will not expect you to be able to list out every item of your investment or real estate portfolio.
- Will-maker must know the persons who are the object of their bounty
This means that you must know who the beneficiaries are as well as what you are giving them.
- Will-maker must understand the manner in which their estate will be distributed
You will need to know and understand how your estate will be distributed to your beneficiaries.
One thing to keep in mind is that testamentary capacity is not something that can be diagnosed. Medical evidence only serves as important and relevant information. Ultimately the court is open to reach a conclusion based on the evidence it has.
Signing (Executing) the Will
The requirements for will signing is quite straightforward. It simply requires your signature, followed by the signature of 2 other witnesses that are not beneficiaries indicating that they witnessed your signature (order matters; you must sign before your witnesses).
Although it’s not required to go to a notary for the will to be legally valid, if your situation is more complex (ex. Child support obligations, blended families, foreign investments), it might be a good idea to go to a notary to save yourself from future complications.
In BC, due to covid-19, the government has permitted online witnessing and signing of wills so you are able to execute your will in the comfort of your home using services like NotaryPro.
After signing the will
Wills notices
After a will has been signed and executed, it might be a good idea to file a wills notice with Vital Statistics. The will notice requires your full name, date, your place of birth, date of execution and the location of the will. By filing a will notice, you now have official records of your estate planning efforts and will minimize further complications down the road. Examples where the deceased has written a will but, his family only knows that he put it in an unknown safety deposit box are quite common.
Wills storage best practices
The Law Society official recommendation is to keep wills in a place where they can be readily located and retrieved when required and free from risk of accidental loss or destruction. If you search “where to store wills” on Google, you will get some interesting results (like in your freezer as it’s the last place to burn in a fire…) Here are some recommended options for will storage:
- Store it with your Lawyer
If you went to a lawyer to draft your will, most attorneys will give you the option of storing your will with them for a fee. If you choose to leave your will with your attorney, make sure to tell your family that you’ve done so and mention it in your will notice if you are planning to submit one.
- Safety deposit box (only if you’re comfortable with someone else having access)
Only store your will in a joint safety deposit box. If nobody but you has access to the safety deposit box, a court order is required for your family to access it after you pass, which could take a long time. This further delays the probate process and might cause nuances for your loved ones.
- Online Will Storage
Since the amendments to Bill 21, BC now recognizes electronically stored wills. Estate document storage tools such as Time Secured are becoming increasingly popular due to its ability to automatically give access to executors and beneficiaries upon passing.
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Why make a Living Will?
So what exactly is a living will? Unlike a final will where you state who you want to inherit your property after you pass away, in a living will, you outline your preferences about future healthcare treatments, in case you’re ever unable to express your wishes to doctors and loved ones. For example, if you end up in a coma, unconscious or unable to verbally articulate your thoughts.
A living will also be referred to as “medical directives,” “health care proxies,” or “advance health care directives.” Some jurisdictions have a standardized form, while other places allow you to draft your own document so long as you have it witnessed and signed.
Once you make a living will, at a time when you are able to mentally and physically do so, the person making a decision on your behalf, if something were to happen to you, will be bound to comply with any wishes you expressed while you were still capable. It is a binding document.
These documents have become popular as more and more people realize the importance of making critical decisions about their medical and end-of-life care ahead of time. Many legal battles have taken place which negatively affect family members where they try to keep a specific member alive using medical treatments, while others prefer to end the person’s life if no recourse is expected in improving their health to minimize suffering. Having a living will help prevent much of this by allowing each person to document their own wishes and preferences, giving more certainty, for other family members or loved ones to follow whether they agree with it or not.
Some of the specific benefits of a living will include:
Authorize treatments. There are many procedures that require authorization from the patient. You can make these authorizations in advance in case you are incapacitated. You can ensure that you will get the treatment you need and want.
Refusing specific treatments: As the inverse of the previous point, there are a number of reasons why people may not want certain medical treatments. It could be a “do not resuscitate” order, or you may not want a feeding tube. Some treatments may be against your moral or religious beliefs. A living will give you control over the treatments that you will accept and those you will not.
Know your outcomes: You never know when an illness or disease might strike or you may be in an accident that puts you into a situation where you cannot make your health care decisions. Having a living will in place ensures you that incapacitation will not make outcomes a guessing game. You know what to expect because you have specified it.
Eliminate financial problems for your family: Medical treatments, especially long term care, can become very expensive. You can make decisions in advance that will eliminate or minimize the cost of care for you.
Make the decisions easy for your family: Similar to the previous point, since you have specified what you want, it will be easier for your family to accede to your wishes. You have limited their options so decisions won’t be as difficult as they might have been.
Prevent arguments among family members: Your family cares about you, but different family members may have different opinions about the best treatment for you. By creating a living will, you can eliminate any disagreements.
Ensure doctors follow your wishes: With an advance directive, your doctors will do what you wanted them to do. They won’t do what they simply feel is best for you. You are in control and not your doctor.
The Time Secured app makes creating a living will easy, there are editable templates that can be used and downloaded for signature. These can then be sent to your family members for safekeeping or through the passing vault (if you don’t want them to see it until there is a need to).
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What is a Will Executor?
When someone close to you passes away, or even you, it can be a trying experience for the family and loved ones of those that pass away. In addition to dealing with mourning and grief, there are a number of practical matters that need attention, and right away, including funeral arrangements, obtaining death certificates, reading the will, probate, distributing assets, and so forth.
Hiring an estate executor (also known as the personal representative, administrator, estate trustee, or liquidator) can make the difference between an easy process to an extremely stressful one.
The executor’s responsibility is to manage and wind up the deceased person’s estate, resolve any debts, distribute assets to heirs, and file legal paperwork. Some of the tasks might include the following:
- Arrange Funeral — Request burial or cremation, organize the memorial, order death certificates, etc.
- Take Inventory — Find and organize all estate assets and debts
- Become Executor — Get appointed by the court (if going through probate)
- Send Notifications — Notify friends and family, social insurance, banks, credit cards, etc.
- Manage Estate — Maintain and care for assets; plan asset disposition
- Resolve Debts — Pay off debts in full, or arrange for debt forgiveness
- File Taxes — Submit relevant tax returns: decedent income, estate income, etc.
- Make Distributions — Distribute net assets to heirs
- Wrap It Up — Finalize the estate settlement, including probate final accounting (if applicable)
Some tasks can be performed by anyone, such as notifying next of kin, while others have strict legal requirements. For example, some jurisdictions require that an estate administrator resides in the deceased same jurisdiction which can be difficult. Fees and costs related to getting an Executor, especially if you have limited assets, can be significant but in many cases tax exempt.
The role of an executor can be complicated and involve tax, legal, and other financial decisions. It may also be contentious depending on family dynamics. While most people choose an executor when they draft their first Will, life events typically trigger a re-evaluation of who should take on that responsibility for you.
Be sure you are careful with whom you appoint, that they are ready for the job, and that you use Time Secured to give them all the necessary and updated information for them to properly implement your final wishes.
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Should I Write a Will?
Why have a will? Even if you don’t have much to leave behind when it comes to material things, having a will is one of the most important things you can do.
You probably had a few people talk to you about it (or maybe not) – had a few family friends bring it up every time you meet, it can be an annoyance, and frankly you are likely avoid talking to them for that purpose. Realising how important it is, even later in my life, has made all the difference.
Most people will say I don’t have much to leave in terms of money, or things, but it can be as simple as saying who the guardians are going to be of your kids, even if there is an understanding before you pass away. Emotions will run high and people will start to overstep if you don’t make sure things are all clear.
If you don’t have kids or much else to be taken care of once you leave, a will is good to prepare simply to say you don’t have anything to give away – as simple as that! It has it in black and white, there is no confusion, and everyone is clear on what you do (or don’t) have; and what you want to do with it.
Lots of free will preparation websites and templates you can find online depending on the jurisdiction you live in. Also worth making a health decision consent form (and probably even more important to you since you’ll be alive or a version thereof) – where you give authority to people to make treatment decisions for you. Don’t panic you can stipulate when it comes into force, so no one is going to make medical decisions for you arbitrarily. This is another big one and is almost as important as the final will.
Making a will is a favour you do for those you leave behind, giving them clarity, keeping their conscious clear and avoiding unnecessary bad blood when they are already reeling from a difficult time. If you haven’t lost anybody close to you it’s hard to prioritise this as a top concern. But take it from someone whose experienced a close death early on, it’s really one of the main things I make sure I do knowing what I’ve gone through. Hopefully you don’t need it anytime soon, but it wouldn’t hurt to have it ready when the time comes, which can be a sudden shock.