Wills FAQ

What happens if I die without a will?

If you don't make a will or use some other legal method to transfer your property when you die, provincial or state law will determine what happens to your property.  This process is called intestate succession. Your property will be distributed to your spouse and children or, if you don't have either, to other relatives according to provincial or state laws.  If no relatives can be found to inherit your property, it will go to the province or state in which you reside.  If you have minor children and die without a will, a court will determine who will care for your young children and their property if their other parent is unavailable or unfit.

Do I need a lawyer to make my will?

In most situations, probably not.  Making a will does not usually involve complicated legal rules.  Most people can draft their own will with the aid of a good self-help resource.   If you have questions that aren't answered by your self-help resource, you should consult with a lawyer.

For more information on preparing your own will, see the free legal tutorial entitled Wills and Estate Planning found in the Lean Law Library.

I don't have much property.  Can I just hand write a will?

A handwritten will is called a holograph will.  It usually isn't witnessed.   If you have very little property and you want to make  a few specific bequests, a holographic will is better than nothing.  In general, they are not recommended because it is more difficult to prove the will is valid in probate court, and it may be necessary to have affidavits signed to verify the signature of the testator or testatrix.  A person making a will is called a testator (if he is a man) and testatrix (if she is a woman).

What makes a will legal?

Any adult of sound mind is entitled to make a will. Beyond that, there are just a few technical requirements:

• The will must be typewritten or computer generated (unless it is a valid holograph will, as discussed above).
  

• The document must  state that it is your will.
  

• You must date and sign the will.
  

• The will must be signed by two witnesses. The witnesses must watch you sign the will although they do not have to read it.  The witnesses must be people who do not inherit anything under the will.

You don't have to have your will notarized.  However, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.

Do I need to file my will with a court or in public records somewhere?

No.  A will doesn't need to be recorded or filed with any government agency.   Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.

Can I use my will to name somebody to care for my young children, in case my spouse and I both die suddenly?

Yes.  By law, if both parents of a child die while the child is still a minor another adult  (a guardian) must be appointed to care for the child. You and the child's other parent can use your wills to nominate someone to fill this position.  To avoid conflicts, you should each name the same person.  When a guardian is needed, a judge will almost always appoint your nominee as long as the judge agrees that it is in the best interest of the child.

The guardian will be responsible for raising the child until adulthood. You should have complete confidence in the person you nominate, and you should be certain that your nominee is willing to accept the responsibility of raising your child should the need actually arise.

Can I leave property to young children in my will?

Children under eighteen can inherit property.  If it is substantial property, an adult must be appointed to manage it for them. You can use your will to name someone to manage the property you leave to minors, and avoid a court-appointed guardianship. There are many ways to structure property management.  Four simple and useful arrangements are as follows:

1. Name a guardian and trustee in your will.  The guardian will have legal custody and control of your children and the trustee will manage the property on behalf of the children and will pay the guardian any funds needed to care for the children until that they reach the age of majority as specified by provincial or state law.
   

2. Set up a testamentary trust for each child.  A testamentary trust comes into effect after your death.  You can set up a testamentary trust in your will and name a trustee to handle the property your child inherits until that child reaches an age which you specify.  When the child reaches the specified age, the trustee winds up the trust and gives the trust property to the child.
   

3. Set up an inter vivos or living trust for your children.   An inter vivos or living trust comes into effect while you are still alive and can be used to manage your family's financial affairs should you become incapacitated.  Such a trust would normally name you, your spouse and your children as beneficiaries.

LeanLegal will be providing a detailed tutorial on estate planning, the rationale behind establishing trusts, preparing your own trust and other related matters in the near future. If you would like to be notified when this information is available please sign up for our free e-mail newsletter LeanLegal Briefs.

Can I disinherit relatives?

You can disinherit anyone other than your spouse or child by simply not mentioning that person in your will.  He or she will not receive any of your property.  The rules for spouses and children are different and are explained below.

Spouses

It is not usually possible to disinherit your spouse completely.  If you live in a community property province or state, your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. You can, however, leave your half of the community property and your separate property ( all property owned by you before marriage or received via gift or inheritance during marriage) to anyone you choose.

To protect spouses from being completely disinherited, many provinces and states give spouses a legal right to claim a portion of an estate, no matter what your will provides. For example, in Manitoba The Homestead Act protects marital home rights upon the death of a spouse and The Marital Property Act incorporates provisions regarding property rights of a surviving spouse.  Under The Homestead Act, the surviving spouse is entitled to a life estate in the homestead regardless of  provisions contained in the will of the deceased spouse. Please be sure to read the current legislation in your jurisdiction. All such legislation can be accessed via the internet.

If you do not plan to leave at least half of your property to your spouse and have not otherwise provided for him or her outside of your will, you should consult a lawyer (unless your spouse has willingly consented to this in writing).

Children

It is legal to disinherit a child in some situations.  Some provinces and states protect minor children against disinheritance. For example, in Manitoba The Family Maintenance Act guarantees that the dependents of a deceased must be provided for adequately.

Many provinces and states have laws to protect children of any age from being accidentally disinherited. If a child is not named in your will and is not specifically disinherited, these laws assume that you accidentally forgot to include that child.  The overlooked child has a right to the same share of your estate as he or she would have received if you had died intestate (without a will).   In some provinces and states, these laws may also apply to your grandchildren by a child of yours who has died.

To avoid  legal battles after your death, if you decide to disinherit a child, or the child of a deceased child, expressly state this in your will.   If you have additional children after you have made your will, always remember to draw up a new will which includes (or disinherits) those children.

What should I do with my will after I sign it?

After you die, your executor's first task is to find your will (the executor is the person you appointed in your will to carry out your wishes).  Make sure your executor (and at least one other person you trust) knows where to find your will.  Store the original in an obvious place, for example:

• in an envelope clearly marked with your name and "Will"
  

• in a fireproof metal box, file cabinet or home safe.  If you decide to store your will in a safety deposit box, learn the bank's policy about access to the box after your death.  If the safety deposit box is in your name alone, the box can probably only be opened by a person authorized by a court, and then only in the presence of a bank employee. An inventory may even be required if any person enters the box.  This takes time and, in the mean time, your document will be locked away from those who need access to it.

What if someone challenges my will after I die?

Very few wills are ever challenged in court. When they are, it's usually by a close relative who feels cheated out of his or her rightful share of the deceased person's property.

Generally speaking, only spouses and sometimes minor children are legally entitled to a share of your property. Your adult children are not legally entitled to your property unless it appears that you unintentionally overlooked them in your will.

To get an entire will invalidated, it must be proven in a court of law that the will suffers from a fatal flaw, e.g. that the signature was forged, that you weren't of sound mind when you made the will or that you were unduly influenced by someone.

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