Calgary Estate Planning Lawyers | Litwiniuk and Company

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. 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 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.    

Estate planning is more than writing a Will, although that is an important part of the process. While both services name beneficiaries and include instructions about estate administration, they are very different. Planning your estate goes several steps further. A well-thought-out estate plan includes your wishes in the case of loss of capacity (inability to make your own decisions because of mental or physical illness), trust administration, appointment of guardians, debts and taxes, disability, and so much more. By planning ahead, you can simplify the transition of your assets to beneficiaries, as well as reduce the taxes and expenses of administering your estate. In the case that your wishes are not properly documented prior to the time of your passing, these decisions will be dictated by the Alberta courts and can profoundly affect your loved ones for many years to come, both personally and financially. At Litwiniuk & Company, we will work with you to craft a comprehensive estate plan that ensures all eventualities are considered. Our estate planning lawyers will help you choose an estate plan that’s right for you and take care of the legal work, putting your mind at ease about the future. If you have questions about estate planning, or Alberta’s Wills and Estates law, 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.  

It is a common misconception that Wills and Trusts are essentially the same thing when, in fact, they serve very different purposes. One does not replace the other, but they do work well together to create a complete Estate Plan. On one hand, a Will is a legal document that dictates who will receive your property after you die and appoints a Personal Representative to ensure your wishes are carried out. This document takes effect upon your death and covers any property in your name at the time of your passing. It does not handle property held in joint tenancy (property owned together equally by 2 or more parties; when one party to a joint tenancy dies his or her share passes automatically to the other owners). A Will must also pass through probate [hyperlink to probate page] and becomes part of the public record. On the other hand, a Trust holds legal ownership of things that you already own and will own in the future and can be used to distribute your assets at any time before or after your death to those who you name as beneficiaries of the Trust. Put simply, a Trust allows you to distribute property before your death and only includes assets that you choose to include. You may cancel or change your Trust at any time. A Trust also passes outside of probate, so the courts do not have to be involved, ensuring more privacy and saving your loved ones time and money. If you have questions about creating a Will or Trust, or deciding if a Trust is right for you, 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 an Administrator 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 of 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 the burden of doing complex legal work on your own. 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.  

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, 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 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.  

Estate planning is for everyone. Whether you own a piece of prime Italian countryside, or rent a small apartment, you have an estate. In fact, good estate planning is especially important for those with modest to average assets. Your estate includes everything you own including your furniture, car, home, personal possessions, chequing and savings accounts, life insurance, and investments. All too often, people neglect to plan their estate because they don’t think they have assets that are valuable enough, or mistakenly believe their assets will automatically go their children when they pass away. What they don’t realize is that not having a plan in place often results in assets being tied up for many months, higher legal fees for your loved ones, and the courts  taking over either the management of your assets and affairs, or your health and end-of-life decisions in the case of a loss of capacity (inability to make your own decisions because of mental or physical illness), or both. A proper estate plan will:  

• Name the beneficiaries of your estate  
• Include any detailed instructions you may have for dividing your estate (i.e. 70% goes to your daughter who is a single mother and 30% goes to your son who is a wealthy business owner)   
• Include any detailed instructions you may have for who you want to give certain valuables to (i.e. the piano, patio set, pasta maker, etc.)   
• Name a guardian(s) and trustee for children who are minors  
• Consider provision for family members with special needs  
• Consider provision for loved ones who might require financial support (I.e. irresponsible with money, significant debts, divorced)  
• Provide detailed instructions for your care in the event that you become unable to make important decisions for yourself or your finances  
• Contemplate life insurance to provide for your family when you die, disability insurance if you become unable to work due to illness or injury, and long-term care insurance in case of an extended illness or injury  
• Prepare for the transfer of your business on the event of your retirement, disability, or death  
• Minimize court costs and unnecessary legal fees 

A lack of an estate plan can also lead to bitter family feuds. Sadly, we have seen families torn apart over heirlooms and modest sums of money – all which could have been prevented if the proper legal arrangements had been made.  If you have questions about estate planning, or creating a Will, call or email us for a free consultation.

By creating a Personal Directive, you decide who decides, and you can make your wishes clearly known. In Alberta, if you do not already have a Personal Directive in place, your spouse or adult interdependent partner will be the first choice for making these important decisions. If you are single, then one of your adult children or a parent will be the next designated choice. If you do not have children or parents who are willing or able to act in that capacity other family members, such as siblings, may be given the power to make medical decisions for you. For those who do not have family, or their family is not capable of making these decisions, or in cases where these people cannot be located, the decision of who to put in charge of end-of-life decisions becomes more complicated. In addition, there may be times when the patient’s children or other relatives disagree, which can lead to long court cases. A Personal Directive ensures that someone has the power over these decisions and knows what your wishes are. If you have questions about creating a Personal Directive, or end-of-life planning, call or email us to schedule a free consultation. 

An EPA is a legal document that lets you name a person (attorney) to act for you become mentally incapable of managing your finances and property. You may have heard lawyers referred to as attorneys on American television, but this is something quite different. To clarify, an “attorney” in Canada is someone who you select to look after your personal, business, and financial affairs, and is usually a trusted friend or family member. If you become incapacitated by illness or injury and you are no longer able to make rational decisions in your own best interests, an Enduring Power of Attorney will provide power to a person of your choice to handle your financial matters such as your house, mortgage, bank accounts, debts, bills, insurance, etc.  If you have these documents set up ahead of incapacity, then you will have a smooth transition that ensures your wishes are followed, but if you don’t, your family needs to hire a lawyer to apply for an Order to appoint a Trustee (for financial matters). The cost of appointing a Trustee is around 10 times the cost of setting up an Enduring Power of Attorney. If you have questions about setting up an Enduring Power of Attorney, or you have recently been appointed as an attorney, call or email us 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 personal 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 when 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.   

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 endure 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.  

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 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 your 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 and 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.   

If you have significant debts, one of the best ways to ensure your loved ones still receive money is through using life insurance. If you make the proper arrangements, money from your life insurance can continue to go to your family even if you die with significant debt. This especially makes sense for young families who have not yet accumulated significant assets but have a lot of debt and might be left financially vulnerable if one spouse dies and all assets go into the estate. If you have questions about estate planning, or protecting your family’s financial well-being through life insurance, 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.   

As a general rule, we suggest reviewing your estate plan every 3-5 years, or anytime there is a significant change in your life such as the birth of a child, marriage or divorce, death of spouse, or inheriting a substantial amount of money. You should also consider reviewing your estate plan if you begin to experience cognitive decline or are diagnosed with Alzheimer’s or dementia. If you have questions about estate planning at various important stages of life, or revising your estate plan, call or email us to schedule a free consultation.