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FAQ’s – Wills

What is a will?

A will is a written document that highlights how one’s legal property will be managed or distributed after their death. A will can include specific information like how someone is to be buried and how property will be divided among heirs. A will can ensure that you have peace of mind in case of death. It also legally communicates your wishes on how your finances, property, and children are to be supported or divided after death.

Do I need a second will if I have property in another country?

Thanks to the “Convention Providing a Uniform Law on the Form of an International Will” of UNIDROIT in Washington, DC, several countries joined the convention to allow for an international will, including all Canadian provinces. This means that a Canadian citizen can write a will that discusses the division of property they own in Canada and in another country, as long as the other country is a signatory of this convention. An international will has to face the proper jurisdictional necessities for wills in both countries and has other specific requirements which our firm can explain and simplify to clients when we draft their will.

What if the country is not a signatory?

If the country in question is not a signatory of the convention, a second will must be carefully produced that will clarify property division in that country and that will not conflict with your Canadian will. In this case, we can help recommend the appropriate steps to take and discuss the required documents for your Canadian and secondary wills.

Which countries have signed the convention for an international will?

The countries who have signed the “Convention Providing a Uniform Law on the Form of an International Will” are: Australia, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyrus, Ecuador, France, Holy See, Iran, Italy, Laos, Libya, Niger, Portugal, the Russian Federation, Sierra Leone, Slovenia, United Kingdom, and the United States of America.

Why would a will be important to my family?

A will is for any adult, young or old, and should be especially considered by those who have children. A will can ensure how children are cared for and who is caring for your children in case of death. “Intestate” is when a person dies without a valid will. In this case, the beneficiaries of the will have to follow the Succession Law Reform Act (SLRA) and do not automatically have legal control of the estate. In other words, spouses, children, and kin of the deceased have no control over how the deceased’s estate is to be managed. The estate then falls into provincial legislation under the SLRA and distribution of an estate to the family can be delayed over a year after the death.

Do I need to appoint a guardian for my children in my will?

If you have children, you should designate a guardian and specify how property or money will be managed to support your child. In the case where you die and there is no spouse and no will to communicate your wishes, the Ministry of Children and Families will appoint a guardian for your child. When this happens, your child could be left with someone you don’t trust or, if the ministry does not find a guardian and/or no one accepts the responsibility, your child will become a ward of the state. This could mean that if you have more than one child they may be separated. Also, this does not mean that a family member will be appointed as the guardian of your child. Imagine the trauma your child will suffer after losing you and being displaced from their home and lifestyle because you failed to protect them by having a designated guardian in case of your death.

What is an executor?

Executors administer, according to your will, your estate, assets, and/or manage trusts for your beneficiaries. It is advisable to appoint your spouse either alone or with one or more other person. If your spouse is the sole beneficiary of your property, it may be preferable to name him/her as the primary executor. It is not advisable to choose an executor who resides outside of Canada.

What is a power of attorney?

A power of attorney is someone you name to act on your behalf if, for whatever reason, you are ever incapacitated or unavailable to act. There are two types of power of attorney: property and personal care. A power of attorney for property can make legally binding decisions on your behalf with regards to your property and/or finances while a power of attorney for personal care can make legally binding decisions with regards to your personal care.

What is a living will?

A living will is a document where you state how you wish to be treated if you become ill and then cannot communicate your desires for treatment. It is recommended that you also appoint an attorney of personal care. You will be able to authorize this person to make decisions for you in connection with medical treatment, admission to care facilities, and personal care decisions, as stated in your living will, if you draft one. Our firm can help you understand the specifics of a living will and of appointing an attorney of personal care.

Can I disinherit my child(ren)?

Although it is not recommended, you can disinherit your child(ren). If the child is dependent on you and/or under the age of 18, you may attempt to disinherit them from your will but then your will can be taken to court (probated) and the courts will administer your assets and estates as they deem reasonable.

Does my will expire?

No, wills do not expire. However, if they are not revised, they can become outdated. Wills are important to specify your desires for how your property and assets will be maintained or distributed after your death.

Do I need to update my will?

Having a will that has not been updated and does not meet your current desires can harm your family more than help them. In the case of a will that existed before a divorce, certain sections of the will, if not all of it, may still be held accountable. In a case like this, an ex-spouse can be listed as a beneficiary but not your children, limiting your children’s access to your estate and assets.

What is a codicil?

A codicil is a document that amends specific and minor parts of your will. It can be produced and attached to your will after it is signed by you and two witnesses. Although a codicil seems like an easy solution in comparison to drafting an entirely new will, it can bring legal complications later for your beneficiaries if it is probated (taken to court for fraudulence or falsity).

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What is an executor?

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