Last Will & Testament

A Will is a document containing an individual’s last wishes and instructions on how they want their property to be distributed once they pass. When we die, whatever property we leave behind is called an estate. There are three basic parties in a Will:

• Testator is the person creating the Will;
• Personal Representative is the person that executes the wishes and instructions of the Testator; and
• Beneficiaries are the individuals that will benefit from the dispositions of the Will.

Who can make a Will?

• Any individual who is 18 years old or older can make a Will if the individual has the mental capacity to do so.
• Under the Wills and Succession Act, an individual who is under the age of 18 years can still make a Will if the individual has the mental capacity to do so and if the individual:
  • has or has had a spouse or adult interdependent partner;
  • is a member of
    • (i) a regular force as defined in the National Defence Act (Canada), or
    • (ii) another component of the Canadian Forces and is, at the time of making the will, placed on active service under the National Defence Act (Canada); or
  • is authorized by order of the Court under section 36 of the Wills and Succession Act.

Primary things to think about before making a Will

• Choosing a primary Personal Representative and Alternate Personal Representatives (formerly referred to as “Executors”);
• Choosing your Beneficiaries for specific gifts and residuary gifts;
• Creation of spousal, children or disability trusts;
• Survivorship clauses;
• Calamity clauses;
• Disposition of gifts to minors;
• Guardians for any minor children;
• Handling of your remains; and
• Compensation for the Personal Representative(s).

It is recommended that anyone interested in making a last will give serious thought to the items listed above. The estate planning lawyers at Edmonton Law Office are here to help.

Advantages of making a Will

A professionally drafted Will by an experienced wills and estates planning lawyer affords you the following advantages:

1. It can help you administer and settle your estate in a timely manner and avoid complications with Probate proceedings (further information about probate is discussed below);
2. It allows you to set directions as to how your assets can be distributed and allow your wishes to be facilitated in a timely fashion;
3. It also allows you to gift specific properties to specific persons;
4. It ensures that you can impose some control as to how your property is distributed, thereby securing your loved ones’ inheritance;
5. It can also facilitate the appointment of a trusted guardian to look after your minor children; and
6. It also prevents or minimizes feuds between family members and other interested parties.

Contact one of our Edmonton Wills and Probate Lawyers for more information.

The process of creating a Will

Clients often seek out our services because they feel overwhelmed with the many considerations surrounding estate planning. Estate planning, without the guidance of one of our experienced estate planning lawyers, can be an overwhelming task for most. However, regardless of how daunting the task may be, it must be accomplished to facilitate the easy and secure passing of assets to one’s family.

At Edmonton Law Office, we simplify the process for our clients while educating them along the way. Upon retaining one of our Estate Lawyers in Edmonton, we will guide you throughout the estate planning process in the following ways:

• First, we will share with you a questionnaire where you can provide us with your relevant background information and orient us with your preferred options for planning your estate;
• Second, we will meet in person or online, whichever you prefer, to assess your wishes and instructions and to provide recommendations to attain the most appropriate estate planning approach for you;
• Third, after our meeting, we will prepare your Last Will and/or Enduring Power of Attorney, as well as your Personal Directive, in accordance with your wishes and instructions. We will then send you the first draft of the documents for your review, make any necessary amendments, and confirm your instructions to get everything in order;
• Fourth, after receiving your confirmation, we will book our second meeting, where we will discuss and sign your documents together to set your wishes and arrange for your estate plan to be legally enforceable; and
• Finally, when the documents have been signed, and everything is in order, we will provide guidance as to the safekeeping and storage of the signed originals, while we will retain a copy of the same for our records. Alternatively, our Estate Lawyers in Edmonton can provide you with the option of having your documents retained by the Edmonton Law Office for safekeeping.

Note:

When you’re ready to get your Last Will done, we highly recommend preparing your Personal Directive and Enduring Power of Attorney. The cost to do this is minimal compared to the cost and emotional stress your loved ones would face if you don’t have these legal documents.

Can I make changes to a Will?

Yes, your Will can always be changed. There are two ways to change a Will:

1. Rewrite a new Will and destroy the old Will; or
2. Make changes by a document called a “codicil”.

What is a “Codicil”?

A Codicil is a testamentary document through which changes can be made to a Will. For the changes to be made, a codicil must make references to old and corresponding new changes to the Will.

A Codicil must be confined to the requirements of a Will. It is, therefore, only appropriate where a few minor changes are to be made to a Will.

As a Codicil requires the same care and diligence as a Will, it is usually better to draft a new Will. Contact Edmonton Law Office if you require assistance in drafting a new Will.

What circumstances should prompt you to review your Will?

• Divorce/Separation;
• Birth of a child;
• Change in financial circumstances;
• Death of trustee or beneficiary;

Several other factors may warrant a review of your Will. Contact an Estate Lawyer at Edmonton Law Office for additional information.

Effects of Dying Without a Will (Intestate)

A person who dies without a Will is said to have died “intestate”. An intestate estate is an estate or part of an estate that is not disposed of by a Will.

In Alberta, the Wills and Succession Act primarily dictates the rules for intestate succession and estate administration. A person is deemed to have died intestate when a Last Will was not prepared prior to their death. The Act stipulates several presumptions unless a contrary intention is shown. Let’s look at some of these scenarios.

Distribution of Intestate Estate to a Spouse, Partner, Children and Parents

• If a person dies without a Will in Alberta and leaves a spouse or a partner, but no descendants, the entirety of the intestate estate goes to the surviving spouse or partner (s.60).
• Subject to section 63, if a person dies without a Will in Alberta and leaves a spouse or a partner and children, the entirety of the intestate estate goes to the spouse or partner if all the intestate descendants are also descendants of the surviving spouse or partner (s.61(1) (a)). The Wills and Succession Act assumes that the deceased wanted to leave all their possessions to their spouse or partner, and that the spouse or partner will take care of the children.
• Subject to section 63, if a person dies without a Will and leaves a spouse or a partner as well as children, and if any of the intestate descendants are not descendants of the surviving spouse or partner, the spouse or partner is entitled to receive a preferential share from the estate. The preferential share is the greater of $150,000 and one-half of the net estate of the deceased. The children shall receive the remainder of the estate. (s.61(1) (b)).
• Subject to section 63, if a person dies without a Will and leaves a spouse and a partner and children from another relationship, the spouse and the partner split the preferential share, which is the greater of $150,000 and one-half of the net estate of the deceased, and the balance goes to the children (s.62 (a)).
• If a person dies without a Will and has a spouse and a partner and the intestate left to descendants, the spouse and the partner split the entirety of the intestate estate equally (s.62 (b)).
• The surviving spouse of an intestate is deemed to have predeceased the intestate if the intestate and the surviving spouse
  • had been living separate and apart for more than 2 years at the time of the intestate’s death,
  • are parties to a declaration of irreconcilability under the Family Law Act, or
  • are parties to an agreement or order in respect of their property or other marital or family issues which appears to have been intended by one or both to separate and finalize their affairs in recognition of their marital breakup.This does not apply to a surviving spouse who reconciled with the intestate if the reconciliation was subsisting at the time of the intestate’s death (s.63).
• If a person dies without a Will and leaves no spouse, partner or descendant, the intestate goes to the parents of the intestate in equal shares if both survive the intestate or to the survivor of them (s.67(1)(a)).

When Is It Too Late to Create a Will?

Unless you are deceased, in which case you are not reading this, it is never too late to engage the services of one of our Alberta Estate Lawyers, who will assist you with proper and legal estate planning. It is a main requirement in law that before a person creates his or her Last Will, Power of Attorney and/or Personal Directive, they must be of sound mind. This is to ensure that the Will-maker or Testator understands the nature and effects of the documents and why they are signing them. Before a person can make a valid Will, they must possess what we call “testamentary capacity” or the legal ability to make a valid will.

When a person can no longer satisfy this requirement, they can no longer make a Will. This may result in the application for estate administration or estate litigation, which is usually more stressful and costly than a straightforward application for probate.

For more information about creating a Will, contact Edmonton Law Office today to set up a free initial consultation with one of our estate planning lawyers.