FAQs About A Last Will and Testament

Frequently Asked Questions 

All of the suggestions made in the questions asked below, and all the necessary legal clauses for most Wills, are covered in Your Last Will you download and complete.

What is a Will?

Essentially a Will is a legal document that specifies how you wants your assets (i. e. property, money, personal affects) divided and distributed to loved ones in the event of your death. It also spells out how dependents should be provided for. A Will can also detail your wishes regarding medical treatment and funeral arrangements.

Why do I need a Will?

Creating a Will allows you, not the Courts or the government, to decide how the assets you spent your life accumulating will be divided after you're gone. While these decisions are difficult, they are important and can have a serious impact on your family. Having a Will lets you decide who will be your executor and how your dependents will be cared for so that if you something does happen to you, you will at least have the peace of mind knowing that your affairs will be taken care of.

What are the basic components of a Will?

There are three main parts of a Will. These parts are as follows:

- Identifying the Testator
- Appointing the Executor and an alternative choice who will take on the responsibility if the first declines
- Naming the beneficiaries and their legacies

You may also want to include predeceasing clauses which specify what will happen to a beneficiary's legacy in the event that he or she dies before the Testator. Another possible addition would be a Residual Clause which explains how to deal with any assets not included in the Will.

Can I write my own Will?

Yes, you can. While individuals with large estates may need the assistance of an attorney, the average person can create their own will relatively easily. We can help you write your own Will. 

Who should I select to be my executor?

An executor is, of course, the person(s) responsible for making sure your last wishes are carried out. In some cases, this might be your attorney. However, you do not need a legal professional. You could choose your spouse, your children, a close friend, etc. The most important thing is that you select someone who you trust and who will be in your life for the long-term. Also, you should take into the account the individual's health and age. Parents and grandparents, for example, would make unwise choices since they are more likely to die before you.

Who should I choose to witness the Will?

Your witness can be any adult who is not included in your Will as a beneficiary or as an executor. The reason for this is that, in the event of a dispute, the courts may find that the witness was able to influence your final wishes.

Before an individual agrees to witness your Will, he or she needs to be aware that they may be called upon to appear in Court if there is a question about the validity of the Will. For this reason, you should select potential witnesses who are likely to remain in your life for the long-term and who would be fairly easy to track down if it became necessary.

Can I include health care decisions in my Will?

Absolutely. As long as you are physically and mentally able to make decisions about your medical treatment, care facility admission, and personal assistant services you can include them in your Will.

When you are making these decisions, you need to consider realistically what types of long-term treatments you would consent to. For example, if you were unable to breathe on your own, would you want to use a ventilator? Obviously, you won't be able to predict the future, and you won't know what circumstances you may one day find yourself in, so you will also need to appoint someone you trust, other than your family physician, to make sure your wishes are carried out and to make decisions for you which may not be covered in your Will. If you want, you can even appoint more than one person to handle this responsibility. In this case, you will also need to specify whether the individuals you appoint must act jointly or if they can make personal care and medical decisions for you independently of one another.

What happens to assets that I don't include specifically in my Will?

There are two possibilities. Any assets that you do not give away or distribute through your will may be divided up according to the laws of intestacy. These laws vary depending on where you live, but they clearly specify who will inherit your remaining assets.

If you don't want that to happen, then you need to include a Residual Clause in your will. This clause basically specifies who will receive any of the remaining assets or any assets you were to give away to a beneficiary who died before you. Additionally, any assets that you purchased after the Will was written, will be distributed according to the Residual Clause. 

What happens if I get married, divorced, etc.?

Any changes in the relationships you have with your beneficiaries need to be reflected in your Will and, in some cases, may even automatically cancel your current Will. For example, marriage causes a Will to be revoked unless the Will was written in contemplation of marriage. On the other hand, divorce does not cancel a Will; it only nullifies those sections pertaining to the former spouse. If you and your spouse are separated, however, you will need to make the necessary updates to your Will.

If you are not married but are in a long-term committed relationship, then you need to clearly specify in your Will which assets that individual will receive as well as how he or she should be supported after your death. This is especially important because unmarried partners are not necessarily entitled to the same rights as a legal spouse.

Changes in relationship may also affect your executor choice as well. For instance, if your spouse was to be your executor, and you divorce, then you would obviously need to select a new executor and write a new Will.

The bottom line is that any time there is a change of relationship, you should really create a new Will so there are no complications or disputes when you are no longer around to explain your wishes.

How should I deal with the beneficiaries in my Will?

Beneficiaries are the individuals you have named who will be receiving parts of your assets. You need to be clear about who is to receive what in your Will, so each beneficiary should have their full name, occupations, and full address included along with the specific item(s) that are to get from your estate. By including this information, you are also making it easy for these individuals to be located in the event of your death.

There are a few things to keep in mind when making gifts to beneficiaries. For one, you need to be practical. If your son lives in a no-pets allowed apartment, for example, don't give him the family dog. Likewise, if your niece has a studio apartment, don't make her the beneficiary of your king size water bed. Also, unless you have a Residual Clause in your will, you will need to update it if one of your beneficiaries dies before you. Otherwise, their share of the estate will be distributed by the laws of intestacy and not by your wishes.

Finally, many people wonder whether or not they should inform their beneficiaries that they have been included in their Will. It is probably a good idea to at least let them know that they are included. However, there is not necessarily any reason to tell them specifically what they will be receiving, especially since you may make changes in later versions.

Where should I store my Will?

Just as with any important legal document, you need to store your Will in a safe and secure location. Additionally, the spot you choose needs to prevent the document from being damaged by water, fire, etc. However, the location you choose should also be one that is easy to find in the event of your death. A safety deposit box at your bank or a safe in your home would be two ideal locations. In either case, you need to provide the executor with the specific location of the Will as well as the key or combination.

Because it is important that your executor be able to locate your Will quickly, you may want to make copies. One of these copies should be stored with your personal papers while the other should be given to your executor. Both copies should be clearly labeled "Copy;" the original does not need to be marked.

What happens if I don't make a Will?

When a person dies without a Will, he or she is said to have died intestate and their assets are then distributed based on the laws of intestacy for their region. Because these laws are based strictly on legal relationships, they do not consider how much certain relatives may have meant to the person or what emotional attachment loved ones had to specific personal belongings of the deceased. These laws also do not take into account relationships that are not recognized by law. For example, if a couple lives together but is not married, the survivor member may not receive any part of the estate.

Additionally, if you do not have a Will, any disputes concerning your asset's distribution will have to be resolved in the courts and the costs will be paid by your estate.

How often should I update my Will?

Your Will needs to be updated in any of the following circumstances:

- A change in relationships occur (i. e. divorce, marriage, separation)
- A beneficiary dies before you (unless you want those assets to be distributed according to your Will's Residual Clause)
- Any major assets, such as a car or property, are purchased or sold
- You or anyone else mentioned in the Will has a name change.
- You have children or your children reach the age of majority
- You move to a different province, state, or country
- Your relationship with anyone mentioned in the Will changes

Even if you do not need to update your Will, you should still review it regularly (at least once per year) to be sure that no changes are necessary.

How can I cancel my Will?

Many people are not clear about how to cancel their Will. For example, some believe that a divorce cancels the entire Will. However, a divorce only cancels the sections of the Will that pertain to the former spouse, not the entire Will. Even though divorce is not one of them, there are a number of ways for you to cancel your Will, including:

- Writing a new Will
- Getting married (unless your Will was written in contemplation of marriage)
- Destroying your Will.

If you do cancel your Will, you should write a new one immediately. Otherwise, you run the risk dying without one. In that case, the laws of intestacy will decide the division of your assets.

What do I need to know about a Last Will and Testament?

A Will, also referred to as a Last Will and Testament, is a document describing your wishes in the event that you pass away.

Make a list of all your belongings, money and other sentiments. Determine how you would like to distribute your assets amongst your family.

Name an executor who will distribute your property according to the instructions in your Last Will.

Name a guardian for any children or dependents you may have.
For your Last Will to be consider legal, you must be of legal age and of sound mind. You must have two witnesses present when you sign your Last Will.

What happens if you die without a Will? 

If you don’t have a last will and testament, the law decides who will manage your estate and who will inherit your assets. The decision who will inherit what won’t be yours or your family’s.

Having a Will ensures that you determine who your property goes to upon your death.

For example, a large portion of your estate may go to your spouse. Your children or other beneficiaries then share the rest.

A clear outline of your last wishes, set out in a last will and testament, can help prevent in-fighting from occurring.

Why should I update my Will?

It’s important to keep your Last Will and Testament up-to-date with major changes to your life.

1. Marriage: You recently got married and now you both need a Will.
2. Birth or adoption: Your Wills should be up to date when you have a child.
3. Separated or Divorced: If you don't update your Will, your assets may be distributed to your ex-spouse.
4. Re-marriage: You remarried and now need a new Will to fit in with your new partnership.
5 Death of a spouse: Same as a divorce, its important that your assets are distributed to the right beneficiaries.

What do I need to know before I write my Will?

The first thing you should become familiar with are a few key terms that you need to understand as you create your will. These terms and their definitions are below:

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