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Canada - Wills

There are three different types of will in Canada. The first is a formal will. This is a document that is typed and signed by the will owner in front of a minimum of two witnesses. A beneficiary or someone who is married to a beneficiary cannot be a witness to a will. It is recommended that a formal will is put together by a lawyer and while this does incur a fee, it will help to avoid any problems later on if some of the terminology is not correct or it is considered that the document has not been signed properly.

The second type of will is the notarial will. This is very similar to the formal will but is used within the province of Quebec. This must be prepared by a notary and signed in the presence of the notary and another witness.

The third type of will is the holographic will. This is a document that you prepare yourself and must be in your own handwriting. You can sign this document without witnesses. However, this type of will is not generally recommended as they are fairly easy to challenge and you need to check within your own province if it is accepted as a legal document.

Alternatively there are many people who opt for one of the ‘diy’ will kits but these can also cause problems if they are not worded correctly.

You need to familiarise yourself with the regulations of the province that you are living in as each will have different requirements, but there are some basic steps that everyone should consider when making a will in Canada. For example, you must be considered to be mentally competent. If there are any doubts about this then the will can be easily declared invalid. The minimum age will vary from state to state. In some states this is 18, in others 19, although there are plans in some provinces to drop this age to 16. The lawyer or notary preparing your will can give you the latest information on this. In some states you may be permitted to make a will at an earlier age if you are serving in the forces or if you are already married.

A will can normally be filed with the local government and this will note the date that the will was made, the details of the person who has made the will and the location of the will. This is not always a requirement, but it can speed up the process of probate.

If you need to revoke a will you can do so by simply making a new one, by declaring in writing that you intend to cancel the will or by simply having it destroyed. If you should marry then this can also make an old will invalid.

It is required by law in most provinces that you should make adequate provision in your will for your children and spouse. If it is considered that you do not then a court can easily alter the terms of the will to allow for this. The executor that is named is the person that must apply for the ‘grant of probate’. The executor can take no action until this has been obtained.

If you should die without a will in place then the estate will be divided in accordance with the laws of the province that you are in. It is not automatically the case that your spouse or partner will automatically inherit. Somebody will still need to deal with the division of the estate and they must apply for the ‘grant of letters of administration’. In most states there are provisions for children and the spouse in this instance, as well as grandchildren if their parents are already deceased. In the event that immediate family such as this are not around then the courts take into consideration parents, siblings, nieces and nephews, cousins and aunts and uncles.

If an estate must go to probate there are fees. These vary but are a small percentage of the total estate value and there may be a property transfer tax payable in some instances. If a deceased person has debts then these must be paid from the estate and it is essential to file a final tax return on behalf of the deceased person.

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