Legal Studies 1030

Section 3 - Laws Related to Wills to and Estates

Lesson 12 - Understanding Wills

Who needs a will? Are there different types of wills? What are some of the legal terms we need to understand in the areas of wills and estates?

Here are some key terms that you need to understand:

  • Will: A legal document which specifies how a person's assets are to be distributed after his or her death
  • Testament: Also known as a Will
  • Testator: The person who has made the Will.
  • Beneficiary: One of the individuals named in the Will who will receive a part of the Testator's estate.
  • Legacy: A piece of property left to a beneficiary
  • Executor: A person named in the Will by the testator who is responsible for carrying out the deceased's wishes

Dying without a Will (Dying Intestate):

Many people incorrectly assume that if they were to die without a Will their estate would simply pass to their spouse.

In Canada, if you die without a will you are considered to have died "intestate." Simply put, this means that your provincial government decides how your assets (your estate) will be divided-and not you. Usually, this means your legal spouse and biological and adopted children will likely end up with your estate's assets.

Intestacy rules, however, do not take into account any intentions you may have for distributing your assets. For example: if you do not have a will, and you have both a legal spouse and a second, common-law partner, who would be entitled to the estate? Most provincial intestacy rules do not recognize common-law partner status, which means if you do not have a will, a common law partner may be left out entirely. Therefore, it is important that you have a will.

What if you are not married, live alone, and have no children — do you still need a will? Yes, you do.

Ever if you are single, with no children, there are two main areas of estate planning with which you need to concern yourself. The first is a standard will that gives instructions for how your assets are to be handled and distributed after your death. Basically, your will should cover these areas:

  • What people or organizations will inherit your property.
  • Who will manage the property you leave to your minor children.
  • Who will serve as executor — the person who will carry out the wishes in your will.

The second is a plan that details your wishes in the event you are alive but unable to make financial or medical decisions for yourself.

For example, you might get in a car accident that leaves you unconscious, or your doctors may need a last-minute decision about something while you are sedated for surgery. When you can't speak for yourself, you want to make sure your medical and financial wishes are honoured. And that means spelling out your specific preferences on paper and choosing someone you trust to handle decisions for you.

Making these preparations now could save your loved ones a lot of heartache or court hassle. Remember Terri Schiavo, the brain-damaged Florida woman who was tube-fed for 15 years? Her parents and husband fought for years over whether to remove her feeding tube and let her die. She first landed in the hospital when she was only 26, proving you're never too young to detail your life wishes.

And once you have drawn up a will, you should revisit it if your life situation changes. For example, if you get married, divorced, have a child, you'll need to take another look at your will.