What is a Will 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 own mortality. It’s common to think, I feel healthy. I’m not even retired. It can wait, or, 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 Litwiniuk & Company, 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.
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;
- 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.
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.
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.
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 though 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 handing 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 determine 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.