Draft a Will

Making a will ensures that your property will be passed onto those you wish in a tax-efficient and speedy manner. A good place to start before you create a will is with ProsperiGuide's Will Planning Questionnaire. Use this worksheet to help you choose your executor, determine the distribution of your assets and decide other pertinent information.

The following points should be considered in your will:

  • The will should be dated, signed, and witnessed by two people.
  • All previous wills are revoked.
  • Appoint an executor (and appoint an alternate, just in case).
  • Include a clause stating the executors need not post an insurance bond.
  • Include a clause stating the executors have the ability to seek professional assistance.
  • All debts are to be paid.
  • Funeral instructions are best not mentioned in the will.
  • Special bequests.
  • Instructions for residual estate.
  • Instructions to a guardian (such as regarding encroachment on capital).
  • Family law clause, which may stipulate that the income earned by a child on inheritance is not sharable with the spouse upon separation (if applicable).
  • A bequest to the executor in lieu of fees.

Naming Beneficiaries

Your beneficiaries are the people or institutions to whom you leave your assets. You can name anyone you want as a beneficiary of your estate. Consider naming alternative beneficiaries in case your first choices die before you do. Keep in mind that:

  • Beneficiaries can be granted a specific bequest or be part of the estate residual.
  • Family members, who think they weren't properly recognized in your will, may contest bequests. Make your will as specific as possible about which person gets what to avoid any problems.

Additional Clauses

Provincial Family Legislation

When drafting your will, be sure to consider provincial family law legislation. In many provinces, the law guarantees that a percentage of the family assets are transferred to your spouse.

In some provinces, net family property is divided equally between the spouses on the breakdown of a marriage. Inheritances, received after marriage, are excluded but any income earned on them is added to the net family property. You can include a clause in your will stating that any income earned on the amount you have requested is to be excluded from the net family property of the recipient.

Personal Effects Memorandum

If there's something specific you want to give to a friend or relative, make a note of it in a personal effects memorandum. Include a clause in your will that refers to this handwritten memo. You can change the handwritten memo at any time, without having to change your will. A signature on the personal effects memorandum is not required.

General Powers

Make sure that the specific powers granted to your executor are properly laid out in your will. These powers cover areas such as:

  • Investments
  • Sale of assets
  • Payment of debts and taxes
  • Duration of responsibility

By being specific in your will, you protect the executor from beneficiaries who may dispute some of his or her actions.

Specific Burial Instructions

Make sure your executor, or whomever you expect to make the arrangements, knows what you want. Remember, a lot of people are buried before their will is even read. Burial and funeral instructions are best left with your estate documents or your executor.

Reviewing and Revising Your Will

Review your will periodically and after a life-changing event occurs to anyone mentioned in it: you, your beneficiaries, an executor, guardian or trustee. Ensure that appointees are still willing and capable of acting on your behalf and that the bequests still reflect your wishes. If a will is old and you want to make several changes, it’s usually best to have it redone. If there is only a minor change (such as adding a bequest), you can amend your will through a codicil. A codicil doesn’t replace an existing will; it’s only used to change, add or subtract from the provisions in a will. Codicils are subject to the same formalities that wills are. An old will is revoked every time that a new will is made; therefore, a codicil must specify that it is a codicil and not a will.

There are many cases in which the specific properties bequeathed have been disposed of before the person who created the will (the testator) dies. The beneficiary of those properties will receive nothing if the will has not been reviewed and rewritten.