A Will is a written document that tells someone how to deal with your property after you have died. A Will does not affect how you use or dispose of your property while you are alive. A Will may also include other directions for after your death, including about who will become a guardian for your children or details about your funeral. These directions are not legally binding in the same way that the directions about gifts of your property are.
A Will does not allow someone to deal with your property before you die. That is usually done through another written document, called an Enduring Power of Attorney.
A Will ensures that your property is distributed by someone you trust and in the way that you want after you die. Without a will there can be delays, complications and uncertainty as to how your estate will be dealt with. Your assets may go to people you don’t want them to go to.
This is called dying “intestate” and it means that to administer your estate someone will likely have to get a court order. As well, your assets will get distributed to people based on what the Estate Administration Act says. Generally, if you are married or have children, your assets will go to your spouse and children (provided you and your spouse have not separated). If you are not married and do not have children, your assets will go to your parents. If your parents are deceased, your assets are distributed to your siblings and, if you don’t have those, to other blood relations. One thing you should know is that if you are in a common-law relationship, your spouse is not automatically entitled to inherit anything, and they will have to apply to the court for a share of the estate.
The requirements for a Will are set out in Yukon’s Wills Act. While every province and territory has similar legislation, the details may vary, so it is important that you are aware of the law that applies here when you are making a Will about property in the Yukon.
In the Yukon, a will must be:
A witness or a witness’ spouse should not be named as a beneficiary in a Will – if someone who is named in a Will or married to someone named in a Will acts as a witness, any gift to them becomes invalid.
Unlike some provinces, Yukon law also recognizes the validity of holograph Wills. These are Wills that are entirely in the testator’s handwriting and signed by the testator.
You can change or cancel your Will at any time before you die, as long as you are mentally capable of doing so. If you want to change your Will, you can either write a whole new one or make a separate document called a “codicil”. A codicil must meet the same legal requirements for validity as a Will (i.e. written, signed in the presence of two witnesses who also sign at the same time and in the presence of the testator). You should avoid writing changes into your existing Will, as it can create confusion. If you do make changes like this, you must ensure each change is witnessed by two people at the time it is made and that it is clear when this was done.
Under Yukon’s Wills Act, a divorce or separation from a spouse (married or common law) will revoke any gifts made in the Will, unless the Will says differently.
Wills are private documents. You will not know that you are a beneficiary unless the executor of an estate tells you or you get notice that they are seeking a grant of probate from the court.
An estate is a general term used to refer to all of the property owned by a person at the time of their death. An estate is “administered” after someone’s death, which means that its debts are settled and its assets are distributed. A Will lets you choose who administers your estate (the “executor”). If you die without a Will, the court will decide who administers your estate. Often it will be a married spouse or close family member.
If someone dies with a Will, the Will may have to be proven in court before the estate is distributed. If the court is satisfied the Will is valid, it will issue a “grant of probate” to the executor(s) named in the Will. This allows the executor to begin managing the estate by paying debts, filing taxes, and transferring property to beneficiaries.
If a person dies without a Will, writes a Will without naming an executor, or the executor named in a Will is unable or unwilling to act, someone may have to apply to the court for “letters of administration” in order to distribute the estate. Letters of administration are equivalent to a grant of probate in that they let the administrator(s) manage the estate by paying debts, filing taxes etc.
If the deceased’s estate does not include real property (land) and does not have a lot of money in it, you may be able to administer the estate under a Will or intestacy without going through court. Often this depends on the banks and other agencies you are dealing with.
Under the Estate Administration Act a surviving (married) spouse and/or next of kin are entitled to administer the estate. The court has discretion to appoint another person when special circumstances make it necessary or convenient to do so. You may want to talk to a lawyer if you are not a spouse or close relative and you want to apply for letters of administration.
No. You can “renounce” the appointment, but you should to do this before a grant of probate is issued and before doing anything with the assets of the estate. If you do take steps to administer the estate a court may find that you have “intermeddled” and prevent you from renouncing.
Both administrators and executors are responsible for paying the debts of the estate, distributing the estate’s assets and accounting on both to the court. An executor can look to a Will with respect to how assets are distributed, while an administrator is bound by the Estate Administration Act. If there is a court case that involves the estate, the executor or administrator will be responsible for acting in that as well.
The Estate Administration guides published by the Yukon government have a practical checklist about some of the tasks you will likely have to complete when acting as an administrator or an executor.
As an administrator or executor, you are entitled to recover out of pocket expenses. As well, a Will often states how much the executor will be paid for their role. With letters of administration, an administrator can get paid through a court order or if the beneficiaries agree on an amount.
As an administrator or executor, you are not responsible for any debts of the estate.
Once the estate’s debts are paid, you can start distributing what remains to the beneficiaries. If someone died without a Will, you cannot distribute the estate until one year after the date of death (unless you have a court order). If someone died with a Will, the beneficiaries can start asking for distribution after a year, but distribution may not always be possible depending on the complexity of the estate. You have a duty to act diligently when administering an estate, but the process can take a long time. You should make sure you are keeping good records in case anyone challenges the length of time it is taking.
A Yukon First Nation with a Self-Government Agreement (SGA) can pass its own laws about inheritance, wills, intestacy and the administration of estates of Citizens. (As of 2022, it does not seem that any have done so).
If the person who died is an Indian under the Indian Act and not a member of a Yukon First Nation with an SGA, Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) may need to be involved in the administration of their estate. You should speak to a lawyer about this.