The importance of having a professionally drafted will

November is “Make a Will” month in Canada, so it’s an appropriate time to discuss not only the importance of having a valid will in place, but how critical it is to have a will prepared by a legal professional with the necessary expertise in estate planning.

Adverse consequences of not having a will

If you die or lose the necessary capacity before having a valid will in place, you will die intestate and your property will be distributed pursuant to the rules of intestacy of the province or territory you reside in—which may not be in accordance with your wishes. Even if the intestacy legislation does align with your intentions, there may still be additional implications to consider.

1. You can’t choose who will administer your estate

Depending on your province or territory, different mechanisms exist to appoint an administrator (liquidator in Quebec), including an application to court in some situations. Not having an administrator will add costs and delays to your estate and create possible conflict within your family.

2. The administrator appointed by the court may be required to post a bond

This bond serves as protection for your estate and beneficiaries in the event the administrator acts inappropriately in your estate’s dealings. The expense is payable by your estate—but may have been avoided if you had appointed an executor in your will.

3. It isn’t possible to implement testamentary trusts

Without testamentary trusts, outcomes may not be what you intended or in your beneficiaries’ best interests. For instance:

• A minor beneficiary’s inheritance will be administered according to the laws of their province or territory. When the beneficiary reaches the age of majority, the inheritance will transfer to them and they can use the funds as they please, regardless of the amount or their ability to manage the money.  
• An adult beneficiary’s inheritance will transfer to them all at once. If they are receiving provincial government benefits, this may not be desirable as it may mean the beneficiary becomes ineligible for those benefits until the inherited assets are depleted. We’ll discuss other situations that may justify using a testamentary trust for adult beneficiaries in a future blog.

Now that you have a better understanding of why it’s important to have a will in place, let’s look at why the will should be drafted by a professional, and not by yourself or by purchasing a will kit.

Reasons to have a legal professional prepare your will

First and foremost, you want to ensure that your will is legally valid. The proper execution of a will is essential. Depending on the province or territory you live in, the court may be able to cure a defect, but it will be fact-specific and will bring unnecessary costs to your estate. In addition, you want to lessen the chance of errors and ambiguity that may be misinterpreted, or objection to your will for allegedly lacking capacity when it was signed, leading to legal challenges that necessitate court intervention.

For Quebec residents or those who own real estate in Quebec, having a notarial will prepared offers advantages including:

• Quick estate settlement, since the notarial will does not need to be probated by a court or notary to be enforceable. However, a notarial will may need to be probated if you own real estate in another jurisdiction at the time of your death.
• Traceability, since all notarial wills are registered with the Register of Testamentary Dispositions of the Chambre des notaires du Québec and the original is kept by the notary. This ensures the will can be traced after your passing. If a copy is lost or damaged, or more copies are required, additional certified copies can be issued.

A legal professional will be able to provide you with personalized planning recommendations and tailor your will to your situation, as well as help structure your estate to be distributed tax-efficiently.

At the end of the day, having a well-thought-out and properly drafted will in place will give you peace of mind, because you’ll know you’ve taken steps to ensure you have a plan in place to distribute your wealth to your beneficiaries when you are gone.

 

I would like to extend a special thank you to my colleague, Magali Dussault-Brodeur, wealth planning consultant at CI Assante Private Client, for her invaluable assistance and unwavering support in preparing each blog.

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About the Author

Valerie Markidis

As a Wealth Planning Consultant with CI Assante Private Client's Wealth Planning Group, Valerie works closely with our team to provide solutions for our clients in the intergenerational transfer of wealth, with a focus on estate planning. Valerie joined CI Assante in 2022, bringing 14 years of experience at two major trust companies, where she held national responsibility for Wills and actively supported advisors across Canada with questions and interpretations related to Wills, Powers of Attorney and Trusts.

Prior to her tenure with the trust companies, Valerie worked in private practice, where wills and estates were some of her key focus areas. She is lawyer with a Bachelor of Law degree from Osgoode Hall Law School and an Honours BA from Queen’s University.