This is an edited version of a Perspectives article, originally published on RBC Wealth Management website.
Among Canadians of all ages, almost half do not have a Will. For younger Canadians (aged 27 to 34), that jumps to 88 per cent.1 There are many reasons people may have put off making a Will: for example, assuming they are too young, pushing it aside for other priorities, or feeling uncomfortable looking ahead to their eventual passing. But the reality is — a Will is important for adults at every life stage.
Understanding Will basics
Generally speaking, Wills can be considered the guiding legal document in the administration of an estate, in which individuals express their wishes as to how property and possessions are to be distributed at death.
Many individuals make the assumption that without a Will, their estate would pass to their spouse. In fact, those who pass away without a Will are said to have died “intestate,” meaning their estate will be administered pursuant to the provincial or territorial intestate legislation based on where they resided at death. Each province and territory has its intestacy laws that define an estate’s beneficiaries and their estate settlement. In a situation where someone dies “intestate,” that could potentially leave a strain on family and loved ones.
8 key considerations in planning your Will
Beyond the basic drafting of a Will, here are some key considerations as part of Will planning and to ensure your Will accurately reflects your wishes.
- Planning in advance to avoid potential oversights and urgency – Leaving the planning to the last minute often means there may not be time to consider all of your options. Planning well in advance can help eliminate many of the pressures associated with drafting a Will and helps to ensure you have the opportunity to examine all options.
- Naming a guardian for minor children – When it comes to minor children, a Will provides the legal means for parents to identify whom they wish to be a guardian should the unexpected happen. In certain provinces, the guardianship appointment needs to be confirmed by the court. Without a valid Will outlining your decision, the government decides who will raise the children in accordance with provincial or territorial law.
- Understanding the tax impact of certain approaches – While you may have certain decisions in mind, it’s important to consider what the potential tax consequences will be and how they may impact the estate. This is especially important to help ensure equality among beneficiaries. What may seem like an equal distribution may not end up that way once tax implications are factored in.
- Ensuring executors and trustees are capable and co-operative – The role of an executor (or liquidator in Quebec) is to administer your estate in accordance with your Will and/or the governing provincial or territorial legislation. Family members or close friends are commonly a preferred choice for these roles, but dynamics should be taken into consideration, especially when individuals opt for co-executors or co-trustees. When individuals can’t work well together, this may increase the likelihood of conflict, delays and unnecessary expenses in the estate administration process.
- Factoring in your beneficiaries’ spouses – Everyone’s family circumstances are different. One may want to consider the potential that a gift to a child may end up going to a daughter- or son-in-law. For example, if an inheriting child were to pass away shortly after the parent’s death, the inheritance could pass to the child’s estate, which means the asset could pass to their surviving spouse. In this situation, a “survivor clause” in which the beneficiary must survive you for a specified time period in order to inherit may be an option to consider.
- Considering assets that will pass outside of the estate – As part of putting together a Will, review which assets will pass outside of the estate. This is also a point to keep in mind for updating a Will — if you decide to transfer an asset during your lifetime or make changes (changing an account to a joint account with right of survivorship, for example) this would likely necessitate an update to your Will.
- Leaving assets to the surviving spouse – In any situation where a surviving spouse has not been provided for in a Will, he or she may be entitled to make a claim against the estate for support. Even if this is done inadvertently, this oversight may mean the family and the estate could be exposed to the costs, delays and stress of taking legal action to address the situation.
- Naming beneficiaries to receive the “residue” of the estate – Generally speaking, “residue of the estate” is the assets remaining after payment of debts, taxes and other expenses incurred in the administration of the estate and any gifts of specific assets or sums of cash. Much like not having a valid Will at all, if beneficiaries aren’t named to receive the remaining residue, the leftover assets could end up being distributed in accordance with the provincial or territorial rules.
Note: This list of considerations is non-exhaustive and may not necessarily apply to your individual circumstances. As such, it is crucial to consult with qualified legal, tax and estate professionals to ensure your situation and needs have been appropriately accounted for.
When to review and revise a Will
Once you’ve created a Will, it’s equally important to update it so it accurately reflects your wishes and intentions. A good rule of thumb is to review your Will every three to five years. Further to a routine review, however, the following are some situations and events that may impact a Will.
- Marriage, divorce or re-marriage – A change in marital status marks one of the most important times to update or prepare a new Will. This is because, in many provinces and territories, marriage cancels previous Wills. If someone remarries and were to pass away before preparing a new Will, their estate would be treated as if they died intestate. Updating a Will after a divorce or separation is also crucial, as these events do not cancel existing Wills in many jurisdictions.
- Changes to financial position – While mid-life is generally a good time to revisit your Will, shifts in your financial position should also be a catalyst for reviewing plans. If your net worth has increased significantly since drafting a Will, there may be new assets that need to be accounted for or opportunities to limit tax implications.
- Death of a life partner, executor or beneficiary – The death of a spouse or life partner usually necessitates an update to an individual’s own Will. If your executor passes away, changing a Will as soon as possible is crucial. If one or more of your beneficiaries dies, the Will and any other estate-related documents should also be updated.
- Acquisition of foreign property – When purchasing foreign property, a range of estate-related factors and their resulting consequences need to be considered. From a Will perspective, individuals need to determine if their Canadian Will (and Power of Attorney) is valid in the jurisdiction where the property is located. In some instances, a second Will may be needed.
- Change in province or country of residence. Every jurisdiction has its own laws and requirements pertaining to Wills, so it’s crucial to consult with a qualified legal and tax advisor to ensure both your Will and estate plans are valid when you relocate either within or outside of Canada. Check also if the choice of executor and trustee are still valid.
- Changes to legislation. Federal and provincial laws can have a significant effect on estates and taxation. Consult with a qualified tax and legal advisor to determine the impact of any legal changes on your Will.
Individuals should always ensure executors and beneficiaries either have a copy of the Will or know where it is stored. Additionally, it is important to keep your executor up to date whenever there is a change to your Will to help avoid delays and prevent unnecessary confusion or stress when it comes time for them to fulfill their role.
1 “Too many Canadians have no will“, RetireHappy.ca, 2020
+ View Disclosure
This document has been prepared for use by the RBC Wealth Management member companies, RBC Dominion Securities Inc.*, RBC Phillips, Hager & North Investment Counsel Inc., RBC Global Asset Management Inc., Royal Trust Corporation of Canada and The Royal Trust Company (collectively, the “Companies”) and their affiliate, Royal Mutual Funds Inc. (RMFI). *Member – Canada Investor Protection Fund. Each of the Companies, RMFI and Royal Bank of Canada are separate corporate entities which are affiliates. “RBC advisor” refers to Private Bankers who are employees of Royal Bank of Canada and licenced representatives of RMFI, Investment Counsellors who are employees of RBC Phillips, Hager & North Investment Counsel Inc. and the private client division of RBC Global Asset Management Inc., Senior Trust Advisors and Trust Officers who are employees of The Royal Trust Company or Royal Trust Corporation of Canada, or Investment Advisors who are employees of RBC Dominion Securities Inc. In Quebec, financial planning services are provided by RMFI which is licenced as a financial services firm in that province. In the rest of Canada, financial planning services are available through RMFI, Royal Trust Corporation of Canada, The Royal Trust Company, or RBC Dominion Securities Inc. Estate and trust services are provided by Royal Trust Corporation of Canada and The Royal Trust Company. If specific products or services are not offered by one of the Companies, clients may request a referral to another RBC partner. The strategies, advice and technical content in this publication are provided for the general guidance and benefit of our clients, based on information believed to be accurate and complete, but neither the Companies, RMFI, nor Royal Bank of Canada, nor any of its affiliates nor any other person can guarantee accuracy or completeness. This publication is not intended as nor does it constitute tax or legal advice. Readers should consult a qualified legal, tax or other professional advisor when planning to implement a strategy. This will ensure that their individual circumstances have been considered properly and that action is taken on the latest available information. Interest rates, market conditions, tax rules, and other investment factors are subject to change. This information is not investment advice and should only be used in conjunction with a discussion with your RBC advisor. None of the Companies, RMFI, Royal Bank of Canada nor any of its affiliates nor any other person accepts any liability whatsoever for any direct or consequential loss arising from any use of this report or the information contained herein. In certain branch locations, one or more of the Companies may carry on business from premises shared with other Royal Bank of Canada affiliates. Notwithstanding this fact, each of the Companies is a separate business and personal information and confidential information relating to client accounts can only be disclosed to other RBC affiliates if required to service your needs, by law or with your consent. Under the RBC Code of Conduct, RBC Privacy Principles and RBC Conflict of Interest Policy confidential information may not be shared between RBC affiliates without a valid reason.
® / TM Trademark(s) of Royal Bank of Canada. RBC Wealth Management is a registered trademark of Royal Bank of Canada. Used under licence. © 2023 Royal Bank of Canada. All rights reserved.
This article is intended as general information only and is not to be relied upon as constituting legal, financial or other professional advice. A professional advisor should be consulted regarding your specific situation. Information presented is believed to be factual and up-to-date but we do not guarantee its accuracy and it should not be regarded as a complete analysis of the subjects discussed. All expressions of opinion reflect the judgment of the authors as of the date of publication and are subject to change. No endorsement of any third parties or their advice, opinions, information, products or services is expressly given or implied by Royal Bank of Canada or any of its affiliates.