Calgary Wills & Estates Lawyers
What is a Will and why is it important to have one?
Parents meticulously plan every detail of their new baby’s nursery and couples spend hours preparing the itinerary for their next vacation. But when it comes to end-of-life planning, many put it off for years or even decades. There are many reasons people avoid writing their Wills. Life gets busy. No one wants to contemplate their mortality. It’s common to think… I feel healthy. I’m not even retired. It’s fine, everything will just go to my spouse if I die (a common misconception, but more on that later). Whatever the reason, it’s never good to delay making a Will, especially if you own a home or have children. A properly written legal Will is one of the most important tools you have to protect your loved ones and in turn give yourself peace of mind.
Whether you are young or old, wealthy or just starting out, planning for the future now will save your loved ones stress, time, and money in the future. Your Will can answer the big questions like, “Who gets guardianship of my children?” or “How can I ensure my loved ones aren’t stuck with unnecessary bills after my death?” A legal Will allows you to dictate the distribution of your estate, the care of your children, business succession, and ensures that your wishes for your estate and family are realized. Our Calgary Wills lawyers can help you navigate the process, focusing on what really matters – fulfilling your wishes and protecting your loved ones. Whether you are looking to create a Will or make changes to your existing Will with a Codicil*, our Wills lawyers in Calgary have the knowledge and expertise to ensure your wishes are properly and plainly stated with clarity and accuracy. We can also review your existing Will to ensure its validity and that nothing has been missed. We go beyond standard forms and basic Wills to truly understand you and your specific wants and needs, so we can deliver a Will that is tailored and personalized just for you. At Litco Law, we can help you navigate the complex and often confusing world of Wills and Estates law, taking care of the legal work so that you can get back to what matters most: living your life and taking care of your loved ones
*Codicil – a separate legal document that allows you to modify or change your Will. Without a Codicil, even minor changes would require an entirely new Will. Once completed, this document becomes part of your original Will.
Writing a Will in Alberta
For a Will to be legal and effective, it needs to clearly state your wishes, be verified by the courts (also known as probate), and be easily accessible – a handwritten letter stowed away in the attic is not helpful. Very broadly speaking, your Will should include the name of your Personal Representative (often referred to as your executor), who you want your assets to go to, and the age at which beneficiaries will receive their inheritance. If you have dependent children, it is very important that you name their guardian(s). You may also want to include any special wishes you might have for your burial and funeral.
In Alberta, and across Canada, the law requires that a Will be in writing. There are three different types of Wills recognized in our province:
- Formal Wills– written by you (the Testator), typically with the help of a lawyer. There are specific laws around validity:
- your Will must be signed by you at the end of the document;
- you must have two witnesses who must both be present together to witness your signature; and
- your witnesses cannot be a spouse or a beneficiary to the Will.
- Handwritten (holograph) Will– a handwritten Will is legal in Alberta but not in all provinces or territories across the country. It must be in the Testator’s own writing and be signed. It need not be witnessed. This type of Will is most useful in an emergency, and your wishes should be stated as clearly as possible to reduce the likelihood of grey areas giving rise to a dispute.
- Military Wills– this type of Will is written by the Testator while they are actively serving the Canadian Forces. The Will does not require a witness and must be signed by the Testator. Military Wills continue to be valid even after you have left the service, although it is generally a good idea to draw up a formal Will with the help of an experienced Wills and Estates lawyer to ensure clarity and accuracy.
There are a few ways to create a Will, including online or paper do-it-yourself kits, handwritten (holographic) Wills, and retaining a lawyer. These methods are all recognized by Alberta law, provided the Will is valid (i.e. you must be at least 18 and of sound mind, the Will must be signed, easily located, and cannot have been made under duress or coercion, etc.). The Alberta government advises anyone who is considering writing a Will to consult an experienced Wills and Estates lawyer, to ensure the Testator’s wishes are accurately represented. Wills and Estates law is complex and confusing, and it’s easy to overlook important factors that, if missed, could significantly impact your loved ones. There are so many variables in creating a proper Will which require more involved planning. For instance, there are special considerations around blended families, business ownership, children, dependents with special needs, and the list goes on. When in doubt, it is always best to consult an experienced Wills and Estates lawyer. If you have questions about creating a legal Will or the validity of an existing Will, call or email us today for a free consultation.
Testator – A person who has made a Will.
Your Will should name a Personal Representative (PR)
In Alberta, the term ‘Personal Representative’ refers to the person responsible for administering the estate of a deceased person, also known as an executor, executrix, trustee, or administrator. This person, usually named in the Will, is responsible for managing and distributing the deceased’s property and assets, as well as carrying out his or her last wishes. Those who are entitled to share in the deceased’s estate are called beneficiaries and must be paid in accordance with the Will. In Alberta, it normally falls to the Personal Representative to handle this process, and an experienced probate or estate lawyer helps ensure that the process is done correctly. Many of these tasks are related to financial matters, taxes, and various related paperwork, so you will want to select someone you can trust to handle these responsibilities.
A good Personal Representative is someone who is mature and organized, preferably with at least some basic financial knowledge. A proper Will always names at least one Personal Representative (sometimes more than one, and a backup is recommended) but if no Will exists, it is up to Court to determine who to appoint as Personal Representative. In other cases, there may be no Personal Representative named in the Will, or the named person is unwilling or unable to take on the role. In those cases, the Court can appoint an Administrator to deal with the deceased’s estate, in place of a Personal Representative. You may wish to include a specific amount from your Will as payment to the personal representative for the level of responsibility and work they have taken on; we can help you determine what is common and appropriate. If you have questions about naming a Personal Representative in a Will, or you are a Personal Representative, call or email us today for a free consultation.
If I die without a Will, does everything go to my spouse?
In Alberta, if you die without a Will, your estate does not automatically go to your spouse. The Wills and Succession Act will determine how your estate is distributed. If you have children, the courts may award your spouse with a portion of the money and divide the rest between your children, to be received at age 18. Your spouse may also have to pay significant legal fees in the meantime.
Consider the following situation. Mark, a married engineer in his mid-thirties with two small children and a baby on the way, intends to leave everything to his wife if he passes. Unfortunately, he is tragically killed in a car accident before writing his Will. After several months, the courts finally rule that his wife will inherit $200,000 from his estate. It is decided by the courts that the remainder of Mark’s estate will be divided equally among the couple’s three children. Since the children are minors, their inheritance is placed into a trust administered by the court until they turn 18 years old. This means that Mark’s widow must apply to the courts every year to access money in order to pay the bills and cover the costs of raising a family and, every year for the next 18 years, the courts will charge administration fees.
This is just one of many scenarios. In other cases, both parents might pass unexpectedly and without a valid Will, and it would be up to the courts to assign guardianship for the children. The key takeaway is that writing a Will is the most important step in protecting those you love. Having a Will in place will speed up the release of your estate, save your loved ones money, and ensure your wishes for the care of your family are fulfilled. If you have questions about writing a Will, or a loved one who has died without a Will, call or email us to book a free consultation.
What happens if I die without a Will?
If you die without a Will, this is known as Intestacy, or dying intestate. The task now falls to the Courts to determine what to do with your estate. With assets being tied up in the courts, the process can be lengthy and expensive for your family. In such cases, a Probate lawyer can help family members apply for a Grant of Administration, which allows the Court to appoint up to three Administrators to distribute the estate of the deceased. The law in Alberta has rules about who may be appointed as Administrator and provides a list of who is eligible in order of preference:
- Spouses or partners;
- Children;
- Grandchildren;
- Great-grandchildren;
- Parents;
- Siblings;
- Nieces or nephews who are named beneficiaries;
- Next of kin who are named beneficiaries;
- A person with an interest in the estate because of a relationship with the deceased;
- A claimant against the estate;
- The Government of Alberta.
All matters related to your estate are effectively paused until an Administrator is selected. Once permission to distribute the estate has been granted by the Courts to the Administrator, Alberta’s Wills and Succession Act determines who can inherit your estate. It is assumed, from a legal standpoint, that you would have left the estate to your family. The Administrator must pay off your debts using the assets in the estate before any funds can be released; whatever assets are left are typically sold and the money is given to the beneficiaries. In general, administering an estate without a Will requires a lot more legal work and ends up being much more costly – a cost which comes out of your estate, meaning less money goes to your beneficiaries. Dying intestate can also significantly impact your loved ones beyond finances, especially for those with children who are minors. Let’s say you and your spouse die unexpectedly without a Will in place, leaving your two young children behind; it will be left up to the courts to decide who will look after your children. A final decision could take weeks or even months, during which time your children would likely be kept in the province’s foster care system. A properly written Will is the cornerstone of your estate plan and the most important step in protecting your family. If you have questions about creating a Will, naming an Administrator, or about applying for a Grant of Administration, call or email us today for a free consultation.
Intestacy – Dying without a will; when the deceased passes without a will, he or she is said to have died intestate, and the courts get to decide who your beneficiaries are and how your assets will be divided.
Your Will should name one or more guardians for your children
For parents, writing a Will can get easily lost amidst the chaos and never-ending to-do list that comes with raising children. What many parents do not realize is just how crucial this step is to protecting their children. Writing a Will allows you to name one or more trusted guardians for your children should anything happen to you. The guardian(s) you select will not only hold the responsibility of caring for and raising your children, but they will also make important decisions about where your child goes to school and whether your child will be raised with certain traditions or religious beliefs.
Let’s say only one parent dies without having appointed a guardian in their Will. The other parent will almost always be responsible for the child’s care. But in the unfortunate circumstance that both parents die without a Will, their children will be placed under the care of the province in the foster care system until, hopefully, a friend or relative is willing to apply to the Courts for guardianship. This process takes time and money, during which period your children would continue to be in foster care. The death of a parent alone causes so much pain and disruption in a child’s life; no parent would wish their child the added suffering of being in and out of foster care while a suitable permanent guardian is found. All this can be easily avoided with a Will.
We understand that you lead a hectic life but, as a parent, writing a legal Will should be at the top of your to-do list. While deciding who to name as a suitable guardian for your children may be difficult, we can help you through the process to make it easier. And if your wishes change, it’s simple to revise your Will at any time. If you have questions about naming a guardian in your Will, or you want to update your Will, call or email us to book a free consultation.
You may set up a Trust through your Will
As part of preparing your Will, you can set up a Trust for beneficiaries that are minors, or any other person who might not be immediately capable of responsibly handling a large sum of money. A Trust is a legal arrangement that appoints a third party, or trustee, to hold assets on behalf of a beneficiary and carry out your directions for managing the distribution of those assets. Trusts are an excellent way to disburse your assets according to your wishes, rather than leaving it up to the courts. Let’s say you want to leave an inheritance for your child to support them as a minor, while also ensuring they don’t receive too much money too soon. You may instruct your trustee to make regular monthly payments from the trust to support your heir until they reach an age where they can responsibly handle a larger sum of money – say, age 25 or 30. There are important considerations to make when deciding to set up a trust, notably that they are irrevocable: once you set up the trust and transfer legal ownership of an asset into it, you don’t have control over the asset and you can’t make changes to the trust. An irrevocable trust is generally not considered taxable and usually passes outside of probate, thereby allowing access to assets more quickly, reducing court fees, and potentially reducing estate taxes. An experienced estate lawyer can help you decide if trusts should be part of your comprehensive estate plan.
Trustor – the person (you) who holds the estate and determines the particulars of the trust.
Trustee – a third-party you appoint to oversee the trust and carry out the duties of passing payments to the beneficiary.
We Are Calgary’s Wills Lawyers
Issues surrounding Wills and Succession can be complex and confusing, but don’t let that stand in the way of planning for your future. A knowledgeable Wills lawyer can help you navigate the process and answer important questions such as, “Do I need a Will?”, “What are Wills lawyers’ fees in Calgary?”, and “How much does it cost to set up a Will Alberta?” Whether you already have a Will in place or are looking to write your first Will, or you have questions about Alberta estate law, we can help. Our experienced Calgary Wills lawyers have been helping Albertans for decades and are here to give you peace of mind. We understand Alberta Wills and Estate law inside and out, and we’re here to take care of the legal work and paperwork, so you can focus on taking care of yourself and your family. Our initial consultations are free, so it won’t cost you anything to find out if you need the help of a Wills lawyer. Call or email us today to speak to a lawyer and get all of your Wills questions answered.
As Wills Lawyers in Calgary, these are the top frequently asked questions we get about Wills:
If you die without a Will, this is known as Intestacy, or dying intestate. In this case, a probate lawyer can help a family member apply for a Grant of Administration, which allows the Court to appoint up to three Administrators to distribute the estate of the deceased. The law in Alberta has rules about who may be appointed Administrator and provides a list of who is eligible in order of preference:
- Spouses or partners;
- Children;
- Grandchildren;
- Great-grandchildren;
- Parents;
- Siblings;
- Nieces or nephews who are named beneficiaries;
- Next of kin who are named beneficiaries;
- A person with an interest in the estate because of a relationship with the deceased;
- A claimant against the estate;
- The Government of Alberta.
All matters related to your estate are effectively paused until an Administrator is selected. Once permission has been granted by the Courts to the Administrator, Alberta’s Wills and Succession Act determines who can inherit your estate. Those who are entitled to share in your estate are called beneficiaries. If you have no will it is assumed, from a legal standpoint, that you would have left the estate to your family.
If a person dies intestate in Alberta, their estate will be divided amongst family members as follows:
- If a person dies and leaves behind a spouse or adult interdependent partner (common-law), and no children, the full estate goes to the spouse or partner;
- If a person dies and leaves behind children with their spouse or common-law partner, the full estate usually goes to the spouse or adult interdependent partner;
- If a person dies and leaves behind a spouse or common-law partner, and children who are not the children of the partner, the widowed spouse or partner, depending on the value of the estate, can receive a share in the estate up to 50% and the children of the deceased are entitled to receive the other 50%;
- If a person dies and leaves behind children, but has no surviving spouse or common-law partner, the estate will be equally distributed between each child. If the children of the deceased are predeceased but have living children of their own (grandchildren), the predeceased child’s portion of the estate will be distributed equally amongst the grandchildren;
- If a person dies and does not leave behind any children, a surviving spouse or common-law partner, the estate is to be equally distributed between the parents, or sole living parent, of the deceased;
- If a person dies and does not leave behind any children, a surviving spouse or common-law partner, and no surviving parents, their estate will then be distributed amongst to the deceased’s siblings; and,
- If a person dies and does not leave behind any children, a surviving spouse or common-law partner, surviving parents, or siblings, 50% of the estate goes to the deceased’s paternal grandparents or their descendants (i.e. aunts and uncles of the deceased), and the remaining 50% of the estate goes to the maternal grandparents or their descendants. If only one side has surviving relatives, the entire estate will go to that side.
The Administrator must pay off your debts using the assets in the estate before any funds can be released; whatever assets are left are typically sold and the money is given to the beneficiaries. In general, administering an estate without a Will requires a lot more legal work and ends up being much more costly – a cost which comes out of your estate, meaning less money goes to your beneficiaries. Dying intestate can also significantly impact your loved ones beyond finances, especially for those with children who are minors. Let’s say you and your spouse die unexpectedly without a Will in place, leaving your two young children behind; it will be left up to the courts to decide who will look after your children. A final decision could take weeks or even months, during which time your children would likely be kept in the province’s foster care system. A properly written Will is the cornerstone of your estate plan and the most important step in protecting those you love. If you have questions about creating a Will, naming an Administrator, or about applying for a Grant of Administration, call or email us today for a free consultation.
There are a few ways to go about making a Will, including online do-it-yourself kits, handwritten (holographic) Wills, and retaining a lawyer. All are recognized by Alberta law, provided the Will is valid (i.e. legal age and sound mind, accessibility, signing, zero coercion, etc.). The Alberta government advises anyone who is considering writing a Will to consult an experienced lawyer, to ensure clarity and that your wishes are accurately represented. Wills and estates law is complex and confusing, and important factors can be overlooked that could significantly impact your loved ones for many years to come. There are so many variables which require more involved planning. For instance, there are special considerations around blended families, matters of business, children, dependents with special needs, and the list goes on. When in doubt, it is always best to consult a wills and estates lawyer. If you have questions about creating a legal Will, or the validity of an existing Will, call or email us today for a free consultation.
If you have recently lost a loved one, or you are a Personal Representative (also known as an executor, executrix, trustee, or administrator) named in a will, you may require the services of a probate lawyer, also known as an estate lawyer. Probating a Will is the process of validating a will in a court of law so that it is certain that the Will is authentic and accurate. When loved ones pass, there are often many relatives and dependents who have an interest in ensuring the proper and fair distribution of the deceased’s assets. Probate helps make that process open and transparent so that all concerned are satisfied that the deceased’s last wishes are known and followed. Another purpose of the Grant of Probate is to certify who has control over the deceased’s estate. In Alberta, that person is called the Personal Representative. Most times, the deceased has named a Personal Representative in his or her will, but in certain cases, such as when no will exists, it may be necessary for a Court to determine who to appoint as Personal Representative. In other cases, there may be no Personal Representative named in the will, or the named person is unwilling or unable to do it. In those cases, the Court can appoint up to 3 Administrators to deal with the deceased’s estate, in place of a Personal Representative.
Making the probate application to the Court is an important step in probating the Will, and an experienced probate lawyer will help you through this complex process, including getting a Personal Representative or Administrator named. Probate lawyers help you settle an estate, which includes identifying and distributing all the deceased’s assets, paying debts and taxes, paying inheritances, and providing for care of the deceased’s dependents. Those who are entitled to share in the deceased’s estate are called beneficiaries and must be paid in accordance with the will. In Alberta, it normally falls to the Personal Representative to handle this, and an experienced probate or estate lawyer helps ensure that the process is done correctly, relieving you of the burden of doing complex legal work on your own. If you have questions about applying for a Grant of Probate or a Limited Grant of Probate, or getting a Personal Representative or Administrator named, call or email us today for a free consultation.
If you already have a Will in place and need to make minor changes to it, such as adding or removing a beneficiary, it is possible to revise your existing Will without needing to go through the process of completely rewriting it. In order to do this, you will need something called a Codicil: a separate legal document that allows you to modify or change your Will. Without a Codicil, even minor changes would require an entirely new Will to be written. Once completed, this document becomes part of your original Will. A Codicil must be signed and witnessed in the same way as a Will, and if it is done improperly there may be questions about your true intentions, the validity of the Codicil, or even the validity of your will.
Typically, if you needed to make minor changes to your Will, most lawyers would draw up a Codicil, at a cost, to modify your Will. And in many cases, Wills and Estates lawyers in Alberta will insist on simply creating a new Will for you altogether. This is very costly. We want to take that burden off your shoulders. Writing a Will is one of the most important steps in protecting your loved ones. Every adult should have a Will, and worries about the cost shouldn’t get in the way. We’ve created the Timeless Will™ because we feel that no one should have to pay to update their Will. With the Timeless Will™, you’re covered for life. We’ll take care of you through all of life’s changes and milestones; from buying a new home, to getting married, starting a business, and starting a family. At Litwiniuk & Company, you get a customized-to-you Will that you’ll never outgrow, because it grows with you. And you’ll get all the changes you’ll ever need, for free. If you have questions about making changes to your Will, or our Timeless Will ™, call or email us today for a free consultation.
A Grant of Probate is a document signed by a Justice of the Court of Queen’s Bench of Alberta, that confirms the validity of a deceased’s last Will and affirms the Personal Representative’s authority to distribute the deceased’s assets. The grant allows the Personal Representative to legally fulfill their duties as the Administrator of the estate. It may also be possible to apply for a Limited Grant of Probate in order to deal with one part of the estate before distributing the rest. This is typically used to allow a Personal Representative to sell real estate owned by the deceased, such as a family home, quickly and easily without having to wait for the entire probate process to finish. If you have questions about applying for a Grant of Probate, a Limited Grant of Probate, or getting a Personal Representative or Administrator named, call or email us today for a free consultation.
In most cases, a Personal Representative (also known as an executor, executrix, trustee, or administrator) will be named by the deceased’s Will, granting that person the authority to administer the estate. If the deceased did not have a valid Will (died intestate), Alberta’s legislation sets out a list of individuals who have the right to apply to the court to be appointed as the administrator of the estate. If you have questions about naming a Personal Representative, administering an estate, or applying for a Grant of Probate, call or email us today for a free consultation.
In Alberta, Canada Revenue Agency (CRA) does not levy estate or inheritance taxes on deceased citizens or their property. That being said, there are probate [hyperlink to probate page] fees involved in resolving most estates. The Province of Alberta’s probate fees are relatively low; currently the maximum fee is $525. The more valuable the estate, the higher the government probate fees. There are also additional fees depending on the forms and applications necessary to probate the estate, ranging from $35 to $250 per form or application. For a current fee schedule, visit https://www.alberta.ca/court-fees.aspx. Lawyers’ fees for probating an estate vary depending on the size and complexity of the estate, the local rates, and the experience of the lawyer. Probate or estate lawyers typically charge either a flat fee, or a percentage of the value of the estate, or a combination of both. If you need help with probate fees or forms, or if you have questions about how much it costs to probate an estate in Alberta, call or email us for a free consultation.
It is a common misconception that the attorney you appoint through a Power of Attorney will be able to handle your financial affairs after you pass. A Power of Attorney automatically ends at the time your death. In Alberta, you will need to name a Personal Representative (PR) to handle the distribution of your estate and any other financial matters such as taxes. If you were to die without a valid Will (die intestate), Alberta’s legislation sets out a list of individuals who have the right to apply to the court to be appointed as the administrator of the estate. If you have questions about Power of Attorney, or naming a Personal Representative, call or email us today for a free consultation.
In Alberta, a Personal Directive is a document that names a specific person who you want to have make personal decisions for you if you are unable to make those decisions yourself. It also outlines your wishes and provides specific instructions on personal matters such as medical care, where you live, who you associate with, whether they will keep you on life support, and so on. If you have a Personal Directive set up ahead of incapacity, then your wishes will be known and followed, but if you don’t, your family will need to hire a lawyer to apply for an Order to appoint a Guardian (for non-financial matters). The cost of appointing a Guardian is around 10 times the cost of the Personal Directive. If you have questions about setting up a Personal Directive, or you have recently been named as an agent in a Personal Directive, call or email us for a free consultation.
After a person dies, the deceased’s debts are paid from the collective estate before any distributions are made to beneficiaries. Payment of the deceased’s debts will ultimately reduce the amount beneficiaries receive. A Will may hold specific instructions for some debts, such as a mortgage. For example, the Personal Representative may be directed to pay off the mortgage using estate funds and then transfer the mortgage-free property to a beneficiary. Alternatively, the proceeds of the sale of the property may transferred to a beneficiary. In the case that the estate does not hold enough money to pay the deceased’s debts, it is important that the Personal Representative seek legal advice as soon as possible. In most cases, if the estate is administered properly, a Personal Representative will not be personally liable for the deceased’s debts. If you have questions about estate planning and debts, or estate administration, call or email us to book a free consultation.
In Alberta, if you die without a Will, your estate does not automatically go to your spouse. The Wills and Succession Act will determine how your estate is distributed. If you have children, the courts may award your spouse with a portion of the money and divide the rest between your children, to be received at age 18. Your spouse may also have to pay significant legal fees in the meantime. Having a Will in places will speed up the process and save money. If you have questions about writing a Will, or a loved one who has died without a Will, call or email us to book a free consultation.
If you and your significant other have the same end-of-life wishes, you might wonder if it is possible to create a Joint Will (also known as a Mutual Will). While this may seem simple and straightforward on the surface, it can cause significant problems down the road. A Joint Will is very difficult, if not impossible, to change after the death of one’s partner. In other words, if your spouse dies and you change your mind about what you want to do with your estate, you may not be able to do so. For instance, if one of your children or a close family member suddenly becomes ill or experiences a financial misfortune and you decide that, rather than distribute the estate equally amongst your children, you would like to leave a larger portion of the estate to support him or her, you may not be able to do so if your spouse who you created the Joint Will with is no longer alive to agree to the change. If you and your partner have the same end-of-life wishes, we would recommend creating Mirror Wills, which are separate documents in which spouses leave everything to the other if they pass away. If you have questions about Joint Wills, or would like to create Mirror Wills, call or email us today for a free consultation.
Yes and no. In Alberta, a former spouse or independent adult child has no claim on any part of your estate, however, certain individuals are protected under the Wills and Succession Act to ensure adequate provision is provided for that individual. Spouses, common law partners, children who are minors, and dependent adult children may make an application for family maintenance and support under the Wills and Succession Act, in the case that the deceased’s Will does not provide adequate support and maintenance. If their claim is reasonable, the Court may rewrite the deceased’s Will to ensure the individual(s) receive adequate provision. It is important to note that they will not be able to access anything outside of the estate such as insurance policies, RRSPS, or property owned in joint tenancy. An individual can technically choose to include or exclude anyone of their choosing from their Will, but if the document does not include adequate provision for dependants, and that exclusion goes against moral obligation or uses offensive wording, the Will may be overturned in court. If you have been unfairly excluded from a Will or if you have questions about writing a Will, please call or email us for a free consultation.
Although you can distribute most of your estate through a Will, there are restrictions on what types of property can be gifted to beneficiaries. In Alberta, a Will does not cover the following assets:
- RRSP plans;
- Retirement/pension plans;
- Life insurance;
- Property held in a trust; or
- Annuities (insurance contracts that promise to pay you regular income either immediately or in the future).
These types of assets are typically passed onto the individuals you have named as beneficiaries in each plan or policy. That being said, if you name your estate as a beneficiary, then your Will can dictate who receives these assets although this is generally not advised as it has the potential to create negative tax implications for your beneficiaries. If you have questions about creating a Will, or distributing your assets, call or email us to book a free consultation
The Surrogate Court is a division of the Court of Queen’s Bench of Alberta that deals with Wills and Estates. There are specific rules that apply at Surrogate Court, and specific forms to use in that venue; an experienced probate or estate lawyer will be well-versed in the laws and forms. Surrogate Court Forms are found at www.qp.alberta.ca; search for “Surrogate Rules Package.” If you have questions about Surrogate Court, or probate, call or email us to book a free consultation.
In order to contest a Will, a person or entity must have “standing” – in other words, they must be personally affected by the outcome of the case in order to contest a Will. An entity, such as a bank or charity may contest if they have been named as either a beneficiary or fiduciary in the deceased’s Will. In general, those who qualify for legal standing are:
- A beneficiary named in the Will
- Children who are of legal age
- Heirs (blood relatives) on an intestate Will
- A spouse or adult interdependent (i.e. common law) partner
- A person named as “Attorney” to act for the deceased pursuant to an Enduring Power of Attorney
- Personal Representatives
- The Public Trustee
You will not be able to contest the Will unless you have proper standing. And, even if you possess standing, you must be able to contest the Will on one or more of the following grounds:
- The Will was not signed properly in accordance with legal requirements;
- The deceased lacked the mental capacity to write a Will at the time it was written;
- The Will lacks adequate support for dependents;
- There are issues with the validity of the Will or technical flaws;
- The deceased was unduly coerced into making a Will; or,
- The Will was forged or fraudulent.
It can be very difficult to prove these grounds and you must have solid evidence to back up your claims. You will need to consult a lawyer who specialized in estate litigation to determine if you have the necessary standing and evidence to contest the Will. If you have questions about contesting a Will or your legal standing, call or email us to book a free consultation.
In Alberta, the term ‘Personal Representative’ refers to the more commonly known role of executor, executrix, trustee, or administrator. This person, usually named in the Will, is responsible for carrying out the deceased’s last wishes, as well as managing and distributing the deceased’s property and assets. Many of these tasks are related to financial matters such as debts and taxes, paying inheritances, and providing care of the deceased’s dependents, so you will want to select someone you can trust to be able to handle these responsibilities after your passing. You may wish to include a specific amount from your Will as payment to the personal representative for the level of responsibility and work they have taken on. If you have recently been named as a Personal Representative, an experienced probate or estate lawyer can help to ensure that the process is done correctly and relieve the burden of doing complex legal work on your own. If you have questions about naming a Personal Representative, or you are appointed as a PR for a loved one who has recently passed, call or email us to schedule a free consultation.
Your Personal Representative can be any mentally competent adult or a corporation (i.e. trust company), a beneficiary named in your Will, or lawyer who is willing to act in that capacity. In most cases, people select a friend or family member who is trustworthy and reliable to carry out the instructions, has the time to carry out the duties, and is willing to take on the responsibility of the role. Ideally, this person will have some knowledge of business matters and be likely to outlive the person writing the Will. You may appoint multiple Personal Representatives to act together to resolve your affairs. It is important that you discuss your wishes with all representatives, and they must be able to work together (i.e. your aunt and uncle who have not spoken in 10 years are probably not the best candidates). It is also important that you name a back-up Personal Representative in case your first choice is unable or unwilling to do the job. If you are looking to name a Personal Representative, have been named as a Personal Representative, or have recently lost a loved one and have questions about the Will or Estate, call or email us to book a free consultation.
This is a common concern for many pet owners. And the good news is yes, it is possible to provide for your beloved pet through a Will. Rather than leaving money directly to your pet, we generally recommend that you designate the money for pet expenses to the person who will be caring for your pet. You can name a trusted friend or family member, if they agree, as the caregiver for your animal in the event of your passing. You should provide care instructions and specify what the funds are for (i.e. food, grooming, veterinary bills, ect.) It is also important to name a backup caregiver in case the primary person you’ve chosen is no longer willing or able to take care of your pet. It is also possible to set up a trust for your pet, although this is generally an expensive and complicated process. If you have questions about your Will, or making provisions for your pet, call or email us for a free consultation.
