Although it may seem a bit morbid, having a valid will stashed away is a good idea for every adult, said Carmen Gustafson, the executive director (and sole employee) of the Yukon Public Legal Education Association, and it’s a relatively simple thing to get done.
November was Make-a-Will Month and Gustafson helped the News de-mystify the process of putting a will together.
Never too young (unless you’re under 19)
In general, you should have a will if you own anything or plan on having children at any point, Gustafson said, even if you’re not suffering from any imminently-terminal health conditions.
“Sometimes people are like, ‘Oh, I’m really young, I don’t need to be thinking about this,’” Gustafson said, but accidents can and do happen.
“At the end of the day, you’re gone. By the time the will comes into effect, it doesn’t really affect you anymore, where your stuff goes. It can be good to reduce conflict between whoever’s left,” she said. It’s especially important if you want to make sure that someone gets (or doesn’t get) something should anything happen to you, and wills can be updated as your life (and belongings) change.
Handwritten wills still count
Unlike several other jurisdictions, handwritten wills, also called holograph wills, are still accepted in the Yukon. In order to be valid, the document must explicitly state that it’s a will, be 100 per cent in the person’s handwriting and be dated and signed, Gustafson said. No witnesses are required, nor does the will need to be notarized (in fact, wills, in general, don’t need to be notarized). There aren’t any rules about what the will can be written on, either.
“It can be on anything. My will is handwritten on a copy of the factum from the Peel case that I was reading,” Gustafson said.
I chose to scrawl mine in my notebook.
Not a holograph? You’ll need witnesses
If you don’t go the handwritten route, you’ll need two witnesses to sign your will — this includes all typed out or fill-in-the-blank-type wills, even if parts of it are in your handwriting. Wills completed via online forms or services need to be printed out and signed by all parties to become valid. Simply having the document exist digitally and stored on a server somewhere doesn’t count.
When it comes to choosing witnesses, any adult will do, Gustafson said, but beware one legal quirk.
“If you leave a gift to somebody in your will but they witness it, it doesn’t invalidate the will, it only invalidates that gift,” she said.
In other words, if you want to leave someone something, don’t make them a witness.
Naming an executor
Although not required, it’s probably a good idea to name an executor — basically, someone who will be responsible for dividing up your stuff, Gustafson said. More than one executor can be named but all co-executors must work together, so beware listing co-executors you suspect may not get along.
It’s worth noting too, Gustafson said, that executors are not personally responsible for paying off any debts left behind, nor is anyone legally obligated to be an executor.
What you can (and can’t) bequeath
Wills deal with your assets — basically, physical possessions, property you have sole ownership over and money, accounts and funds that don’t already have beneficiaries listed. You can dole those out to any legal entity (including charities) that you please.
Other things aren’t so straightforward.
“Everything else is primarily a wish — so you could name a guardian for your children … you could include wishes for your funeral, burial and that kind of stuff, but your executor doesn’t have a legal obligation to do that,” Gustafson said.
Although you can essentially bequeath any of your belongings to anyone, no one is legally obligated to take your stuff (including pets) either, although, when it comes to guardianship over children, being named in a will could help strengthen somebody’s application for custody.
Order and wording matters
If you’re listing off people you want to get a share of something — say, money — they will get it in the order they’re named in on the will, Gustafson said. This can prove problematic if, say, you have 10 grandchildren you want to leave $1,000 each. If you only have $9,000 left when you bite the dust, that means the grandchild you named last gets nothing.
Couples who are not legally married should also be wary of using the word “spouse” in their wills, Gustafson said, because the Yukon doesn’t recognize common-law partners as “spouses.” If you want to ensure your long-term significant other gets something, be sure to explicitly name them.
When in doubt, get a lawyer to do it for you.
If all of this seems like too much of a headache, most law firms will charge $300 to $500 to put together a basic will for you.
“Honestly, for $300, if you want to do something complicated like that, go get a lawyer to draft it,” Gustafson said. On top of making sure all your affairs are in order, a law firm will also keep the original copy of your will for you, which is useful because it will need to be filed in court to get things in motion.
No, the government doesn’t get to take your stuff
What happens if you forgo all this and then die?
“There’s this misconception that if you don’t have a will, the government’s going to take everything,” Gustafson said. “Not true.”
If you don’t leave a will, your assets will end up being divided up according to the Estate Administration Act: first, to your spouse, and then equally among your children (or grandchildren, if your children die before you). If you don’t have a spouse or kids, your assets would go to your parents instead, followed by brothers and sisters and then nieces and nephews.
“It has to go very far before there would be nobody that it would go to,” Gustafson said.
Contact Jackie Hong at jackie.hong@yukon-news.com