Moving Back to Canada - Wills, Estates, & Trusts

While you are living abroad and transitioning back to Canada an unexpected death can happen. It always makes sense to have an up-to-date "Last Will and Testament" ("Will") so that your intentions and estate are appropriately honoured in the event of your passing on. Dying "intestate" (with no Will) is always problematic. However, a Canadian citizen legally resident abroad and under a U.S. or foreign Will at the time of their passing can be a logistical and legal nightmare for their executor and heirs in Canada.

While you are living abroad having an up-to-date Canadian Will in addition to a U.S. or foreign Will is therefore a really good idea for most Expatriate Canadians!

But life can get busy. When you return to Canada you have a lot to do before the move and in the first weeks and months after you arrive, making the creating of a new Will seem like a very low priority. This resource is designed to help you do some pre-planning and you can even create a fast and inexpensive Canadian Will yourself, too (see the service below) so that you can have this piece of your legal life prepared for. One less thing to worry about!

Some considerations and information to inform your planning

• Taxes: Canada is unique among Western countries: We have no inheritance taxes and no "estate", "succession", "gift", or "wealth" taxes! In Canada when someone passes on their capital gains are taxed at that point in time. What is left after taxes are settled is distributed to their heirs according to the instructions in their Will. This differs sharply from the U.S., for example, where inheritances are taxed. In other countries when someone passes on taxes can be quite complicated and very significant in size.
• Trusts: Trusts that you set up in the U.S., for example, are problematic when you move back, regardless of whether you are a returning U.S. permanent resident only ("green card" holder) or a dual-citizen. Most returning Canadians collapse their U.S. trusts and create new ones when they move back to Canada.
• When to engage a Canadian lawyer's help: Do you need to immediately engage a Canadian lawyer's help to create a Will when you return?
  
  Yes: If you have a complicated financial picture with foreign financial investments and possibly physical assets in the U.S. or abroad (gold, real estate, businesses, etc.) then do engage a lawyer who not only understands Canadian Wills but also how to handle your multi-national legal situation. Note: These are highly trained professionals so their services will be expensive.
  
  No: If you have a relatively simple financial reality in Canada and few assets in the U.S. or abroad, such as only U.S. Social Security and an IRA, for example, you do not need to get a lawyer involved. You can create a simple and inexpensive Will yourself and then after you are fully settled in Canada and wish to have a more comprehensive set of instructions that might include power-of-attorney, health care instructions, and specific bequeathed items or funds then the help of a lawyer is recommended.
• Health Care Directives: In addition to the creation of a Will is something that has grown in importance in Canada over the last couple of decades and is usually created at the same time as a Will and by the same lawyer: a Health Care Directive. This document governs how you will be cared for in the event you become incapacitated and how you wish your end-of-life care to be.
• Bringing remains home to Canada If a passing on happens while you are living abroad or in the move transition (many people stage their moves) you may normally bring the remains of a loved one home to Canada. Of course cremated ashes make the journey most simple but you may also have a body moved to Canada from many countries. You will need to prepare some paperwork (death certificate, cremation paperwork, etc.) but you can fly or drive to Canada with remains. This is of course a time when you really want a current Will and clear instructions to guide your family, executor, and heirs.
• Electronic only wills and other legal documents. The field of law is notoriously slow moving in terms of change. That said, in BC and starting in other provinces some electronic only legal documents are increasingly being accepted. This not only means "electronic signing" of documents, which many people are familiar with, but also the creation, storage, and use of fully electronic documents only in some cases. Check with a lawyer as to what is being accepted and not accepted electronically as of the time when you need a new Will, Health Care Directive, Power of Attorney, Real Estate Purchase Agreement, etc.
• Understand wills and estates "terminology". O'Sullivan Law in Toronto (a high end estate law practice for high net worth individuals and families) has this great blog article that explains Wills and Estates 101: Keeping Your Legal Terms Straight.
• A simple will or a comprehensive will + trust?. Another great article From O'Sullivan Law if you are in a financial and legal situation where a comprehensive will + trust might make sense: Why a Comprehensive Will or Trust Can Avoid Ambiguity and Extra Expense.

These are just a few important considerations relating to this subject. Please share your knowledge, tips, and considerations so I can add them here to help other Canadians. Thank you!

Creating a new Canadian "Last Will and Testament"

I have partnered with Canadian Legal Wills to provide you with this easy and inexpensive way to create a new expatriate Last Will and Testament online from wherever you are in the world. This Will can be created while you live in the U.S. or abroad, during a transition home, or when you return and need a new Will set up quickly and inexpensively:

Create your Canadian Last Will and Testament:

I hope this resource is of value in helping you with this important topic and legal process as you move back to Canada!

Latest update: November 2023

I offer professional support to help you prepare for a smooth and easy return to Canada so you can feel confident and organized!

Your questions about when to move back, taxes, investments and finances, bringing back your household belongings, health care, and more will be answered promptly and professionally, with resources to back up what you need. My 20 years of supporting over 1,300 clients gives me a depth of expertise across all aspects of planning and returning to Canada.

Paul Kurucz - Canada

A happy client:

Hi Paul,

Just to update you - we landed and sailed through customs! So thank you so much for all of your advice...It was a thoroughly pleasant experience.

This is to say thank you for everything. Your advisory has been so incredibly helpful and saved us considerable time and removed room for error.

With best wishes,

Caroline

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