8 min read

Difference Between Living Trusts and Wills in Canada

Written by
Willfinity Team

For many Canadians, the process of estate planning can be an intricate one. It requires a deep understanding of the mechanisms available to them and a careful consideration of their long-term goals. Two of the most discussed mechanisms in this realm are living trusts and wills. This article aims to provide a comprehensive overview of these two instruments, their differences, advantages, and suitability for various scenarios.

The Fundamental Differences Between Living Trusts and Wills

At the heart of estate planning lie two primary instruments: living trusts and wills. Although they might seem similar at a glance, they serve different purposes and offer distinct advantages.

a. Living Trusts: A Snapshot

A living trust, often referred to simply as a 'trust', is a legal entity created to hold, manage, and distribute assets. The person who sets up the trust is termed the 'settlor' or 'grantor'. They transfer their assets into the trust, which is then managed by a trustee. The trustee has a fiduciary duty to manage these assets for the benefit of the beneficiaries named in the trust. The key feature of a living trust is its operation during the grantor's lifetime and, potentially, beyond.

Advantages of a Living Trust:

  • Continuity of Asset Management: If the grantor becomes incapacitated, the trustee can continue to manage the assets without the need for a court-appointed guardian.
  • Avoidance of Probate: Assets held in a trust bypass the probate process, which can save time and expenses. This can be especially beneficial in provinces where probate fees are higher.

b. Wills: A Snapshot

A will, on the other hand, is a legal document that dictates how a person's assets will be distributed upon their death. It's a declaration of intent, and it doesn't have any legal effect until the person (termed the 'testator') passes away. An executor is appointed in the will to carry out its instructions after the testator's death.

Advantages of a Will:

  • Simplicity: Drafting a will is generally more straightforward than setting up a trust. It's a direct expression of the testator's wishes without the need for creating a separate legal entity.
  • Nomination of Guardians: For those with minor children, a will is essential as it allows the testator to nominate guardians for their children.

c. Coexistence of Living Trusts and Wills

While living trusts and wills have distinct purposes, they aren't mutually exclusive. Many Canadians opt to have both. A will can cover any assets not included in a trust and provide instructions for scenarios not covered by the trust. This combination ensures a comprehensive estate plan that leaves no asset or intention unaddressed.

The Process of Setting Up and Operating Living Trusts and Wills

Understanding the nuances of estate planning instruments is one thing; navigating the process of their creation and operation is another. Let's delve deeper into the procedural aspects of living trusts and wills to equip you with the knowledge you need.

a. The Creation of Living Trusts

To establish a living trust:

  1. Decide the Type of Trust: The most common types in Canada are revocable (can be altered or revoked by the grantor) and irrevocable (cannot be altered without the consent of the beneficiary).
  2. Draft the Trust Document: This document, akin to the charter of the trust, outlines its terms, the assets it will hold, the designated trustee, and the named beneficiaries.
  3. Transfer Assets to the Trust: This is a crucial step. The assets must be legally transferred to the trust for it to be effective. This might involve changing titles or deeds.
  4. Appoint a Trustee: The trustee's role is pivotal. They will manage and distribute the assets in line with the trust's terms.

b. The Creation of Wills

To draft a will:

  1. Inventory Assets: Start by cataloguing all assets, including real estate, investments, personal belongings, and even digital assets.
  2. Determine Beneficiaries: Decide who will receive which assets. This can include family, friends, charities, or other entities.
  3. Appoint an Executor: This person will be responsible for executing the will's directives after the testator's demise. Choose someone trustworthy and capable.
  4. Draft the Will: While DIY kits are available, consulting a legal professional ensures the will's validity and comprehensiveness.
  5. Witness and Sign: In most Canadian provinces, a will must be signed in the presence of two witnesses. These witnesses cannot be beneficiaries.

c. Ongoing Considerations and Changes

Life is dynamic, and changes are inevitable. Both living trusts and wills offer mechanisms to adapt to life's evolving circumstances.

  • For living trusts, if it's revocable, the grantor can make amendments or even dissolve the trust. Irrevocable trusts are more rigid but can still be altered with beneficiary consent under certain circumstances.
  • Wills can be updated as often as needed. This can be done through a new will or a codicil (an amendment to the existing will). It's advisable to review and potentially revise a will after significant life events like marriage, birth of a child, or acquisition of substantial assets.

Dispelling Myths and Addressing Common Misconceptions

Navigating the realm of estate planning can be challenging, especially with the plethora of information available. Unfortunately, not all of this information is accurate, leading to myths and misconceptions. Let's address some of these to ensure you're making informed decisions.

a. Living Trusts: Beyond the Myths

Myth 1: Only the Wealthy Need Living Trusts

Contrary to popular belief, living trusts aren't reserved for the ultra-wealthy. Many Canadians find value in trusts for their ability to streamline asset management and avoid probate, regardless of their estate's size.

Myth 2: Living Trusts Offer Absolute Protection from Creditors

While trusts can provide some level of protection, they aren't airtight. The structure and type of trust, along with provincial regulations, play a role in determining the extent of this protection.

Myth 3: Trusts Eliminate All Taxes

Trusts can offer tax planning benefits, but they don't eliminate taxes altogether. It's crucial to seek professional advice to understand the tax implications specific to your situation.

b. Wills: Setting the Record Straight

Myth 1: If I Die Without a Will, My Spouse Gets Everything

Dying without a will, termed "dying intestate", triggers a set of provincial laws determining asset distribution. While spouses often receive a significant portion, it's not guaranteed they'll inherit everything.

Myth 2: A Verbal Will is Sufficient

While oral wills are recognized in some jurisdictions, they're fraught with challenges and potential for disputes. It's always advisable to have a written, signed, and witnessed document.

Myth 3: I Drafted My Will Years Ago; I'm Set for Life

Life is ever-changing. As previously mentioned, significant life events can render parts of your will obsolete or not reflective of your current wishes. Regular reviews are essential.

c. The Importance of Professional Guidance

One of the most significant misconceptions is that estate planning can be a DIY project. While some manage to navigate this terrain on their own, the complexities and nuances of Canadian law make seeking professional advice invaluable. Lawyers bring their expertise to the table, ensuring that your estate plan is not only legally sound but also tailored to your unique needs and circumstances.

Real-Life Scenarios: Making an Informed Choice

To truly appreciate the value and applicability of living trusts and wills, it's helpful to consider real-life situations. By examining various scenarios, we can better understand when each tool might be the most appropriate.

a. Scenario 1: Aging with Complex Assets

Mr. Tremblay is a 75-year-old retiree with diverse assets, including real estate in multiple provinces, investments, and a valuable art collection. He wishes for his assets to be managed cohesively and efficiently should he become incapacitated.

Solution: A living trust can be particularly beneficial for Mr. Tremblay. By transferring his assets into a trust and appointing a competent trustee, he ensures continuity in asset management. The trust can dictate how assets are used for his care if he becomes incapacitated, and upon his passing, the assets can be distributed without undergoing probate in multiple provinces.

b. Scenario 2: Young Parents Prioritizing Their Children's Future

Mr. and Mrs. Patel, both in their early 30s, have two young children. Their primary concern is ensuring that their children are cared for if something happens to both of them.

Solution: A will is indispensable for the Patels. In their will, they can nominate guardians for their children, ensuring they are cared for by trusted individuals. They can also dictate how their assets should be used for their children's upbringing and education.

c. Scenario 3: Business Owners Planning for Succession

Ms. Nguyen owns a flourishing bakery chain. She wants to ensure that the business continues to thrive after her and that her employees' livelihoods are protected.

Solution: Ms. Nguyen might consider both a will and a living trust. The trust can hold her business interests, allowing for a smooth transition of management and ownership if she becomes incapacitated or upon her demise. Her will can provide further directives regarding other personal assets and any philanthropic wishes she might have.

d. Scenario 4: Individuals with Cross-Border Assets

Mr. Smith, a dual citizen of Canada and the UK, has properties and investments in both countries. He wants a seamless transition of his assets upon his passing.

Solution: A combination of a will and a living trust can be effective for Mr. Smith. The living trust can help manage and distribute his Canadian assets without the need for probate. Simultaneously, his will can provide directives for his UK assets, ensuring compliance with the legal requirements of both jurisdictions.

Conclusion: It's All About Personal Circumstances

These scenarios underscore an essential truth about estate planning: it's deeply personal. What works for one individual or family might not be the best solution for another. The key is to assess one's unique circumstances, goals, and wishes, and then craft an estate plan that aligns perfectly with them. As always, consulting with professionals can provide clarity and confidence in one's decisions.

Addressing Common Concerns: Frequently Asked Questions

In our journey through the intricacies of living trusts and wills, it's only natural that questions arise. Let's address some of the most frequently asked questions to clear any lingering doubts.

Can I Act as My Own Trustee in a Living Trust?

Absolutely. In Canada, it's common for the grantor (the individual who establishes the trust) to also act as the trustee, especially in revocable living trusts. This allows the grantor to maintain control over the assets. However, it's wise to appoint a successor trustee to step in if the grantor becomes incapacitated or upon their demise.

What Happens If I Die Without a Will in Canada?

If an individual passes away without a will, they are said to have died "intestate." In such cases, provincial laws dictate the distribution of the deceased's assets. These laws aim to distribute assets in a manner that likely reflects the average person's wishes, but they might not align with the specific desires of the deceased. It can also lead to prolonged legal procedures and potential disputes among heirs.

Can I Disinherit a Family Member in My Will?

While Canadian law allows for testamentary freedom (the freedom to distribute assets as one wishes), there are provisions in place to protect dependents. If a dependent, such as a minor child or a spouse, is not adequately provided for in the will, they might have grounds to challenge it in court. It's essential to seek legal advice when considering such decisions.

How Often Should I Review My Estate Plan?

While there's no hard and fast rule, a good practice is to review your estate plan every 3-5 years or after significant life events. This includes marriage, divorce, the birth of a child, the acquisition or disposal of major assets, or changes in tax laws that might impact your estate.

Are Digital Assets Included in Estate Planning?

In today's digital age, this is an essential consideration. Digital assets include online accounts, social media profiles, digital currencies, and more. Both wills and trusts can provide directives on how to handle these assets, but it's crucial to ensure clarity in instructions and provide means to access these assets if needed.

Final Thoughts: The Value of Preparedness

Estate planning might seem daunting, but its value is immeasurable. Whether through a living trust, a will, or a combination of both, taking proactive steps ensures that one's wishes are respected, loved ones are cared for, and potential legal complications are minimized. It's a testament to one's foresight and love for those left behind.

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