Wills & Trusts

Frequently asked questions

What is an estate plan?

Estate planning is an important step to provide for your loved ones after your death and making your final wishes known. A comprehensive estate plan resolves some of the complex questions that arise when someone dies, such as:

  • What’s in their estate?
  • How is their property divided up?
  • What are their funeral wishes?

Surveys frequently find while many Canadians do have wills, they often go five years or more without updating them, which could create fresh legal questions and disputes over the estate. In addition, they don’t prepare other important documents such as a power of attorney, living will, or advanced-care directive.

What happens if I die without a will?

If you die without a will — legally known as “intestate” — you may be leaving a complicated mess for your loved ones and missing an opportunity to distribute your assets in your preferred, more meaningful way. Dying intestate essentially means you don’t get to decide how your estate is split up — the province does.

When someone dies intestate, the applicable provincial succession law kicks in. Here’s a brief overview of what that could mean for your estate.

Does everything automatically go to my spouse when I die?

Not necessarily. If your have no children, the spouse generally does inherit everything. When children are involved, the spouse may get a “preferential share” of the estate, with the rest divided into fractions depending on the number of kids.

This prevents you from specifying certain gifts for certain people, or bequeathing different amounts to different beneficiaries.

Is there a limit on what I can include in my will?

When writing their will, testators often include conditions or restrictions to control how their assets are bequeathed, but there are limits. They may be your assets, but you can’t impose any conditions you please and this can lead into a complex area of law.

Ideally, a valid gift condition is clear, legal, and possible. In many cases, courts have disallowed conditional gifts due to uncertainty, impossibility, or being contrary to public policy.

More specifically, a conditional gift can’t require a beneficiary to commit a crime, discriminate against a religious or ethnic group, give up custody of a child or separate from their spouse. If a condition violates these standards, it could be awarded unconditionally.

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