Life events happens, some of which we can control, and others are totally out of our control. Some of these events that we have control over are, deciding to obtain academic degrees, getting married and having children. Death on the other hand is inevitable and we have no control over it.
The thought of planning ahead for death is sometimes both upsetting and scary for both the testator, the members of their family and loved ones that will be left behind after they are gone. Some people will find planning ahead difficult when they do not know what end of life will look like.
Writing your last will and testament is one of the first steps in the right direction. It is like a map guiding family and loved ones of your wishes when the unplanned finally happens.
What is a Will?
A will is one of the most important legal documents that anyone will ever have prepared. It is a legal document that governs your estate, which is the net value of all your assets or property minus a few selected items such as assets or property owned jointly by yourself and another party such as a Spouse or Adult Independent Person. A will is the only way you can leave clear instructions regarding the distribution of your estate and care for minor children when you’re gone. Whether your final wishes are respected depends on whether you have a will, what the will says, and how the will is worded.
Without a will, things can get pretty complicated, stressful for your loved ones during an already difficult time, and your actual final wishes may not be respected. Estates without a will are divided up according to the Wills and Succession Act and the person responsible for managing the division of your estate (your executor) will be selected by the court using the rules laid out in Alberta’s Estate Administration Act and where minor children are involved, the court will appoint a guardian for the children who may not be the person you would have chosen. However, if you have a will, you are in control of deciding and choosing who you want as your executor, determining who you want to be the guardian of your children and can communicate all important instructions for them to follow after you’re gone.
Why the DIY Route Isn’t Always Best
Though you can prepare a will by yourself if you like, you should, at the very least, consult a lawyer for help. DIY will may seem cheaper at the onset, but it also has the tendency of costing the estate and/or the beneficiaries of the estate more money later when the issue of validity is raised. A lawyer can draft a will that addresses your wishes and can advise on what will happen if you leave anything to statue (specifically, those two acts we mentioned).
What Needs to be Included in a Will?
When preparing a will, certain information is fundamental and must be present in a will. Some of these essential components are your name (Testator – the owner of the will), appointment of the Executor, detailed information about the assets and the beneficiaries, how the estate is to be distributed and, where minor children are involved, appointing a guardian.
Any property in your state that isn’t mentioned in your will becomes what’s called an intestate estate which is governed by the Wills and Succession Act. Like an estate in general, intestate estates can include:
- Personal property, such as your clothes, car, and other physical items.
- Financial assets like bank accounts or investments (unless they are jointly owned with someone else)
- Real estate (you need to specify if this is jointly owned or tenant in common).
That means your will must specify exactly what you want to happen to each item if you don’t want anything to be classified as an intestate estate.
The word Executor and A Personal Representative is usually used interchangeably and still means the same thing. Since 2012 in Alberta, Personal Representative is the legally correct title for an individual appointed by the testator to execute or carry out the instructions as set out in the will
In your will, one of the most important things to outline is who the personal representative of your estate is.
The personal representative has the following duty:
- Manage the estate
- Keep track of all assets
- Pay any debts and funeral costs
- Distribute estate property to those named (the beneficiaries) by the will.
That can be a big job, so it’s important to familiarize yourself with best practices for nominating personal representatives. It is important that you choose a personal representative that is at least 18 years old, responsible, reliable and someone who is willing and diligent to carry out your instructions when you are no longer here.
Guardianship & Trusteeship
Guardianship refers to who will care for and raise your dependent children, which isn’t the same as trusteeship. A trustee is someone who will manage the assets you have left for your children until they are legally adults. While you may choose to make your children’s guardian and trustee the same person, you don’t have to.
A well-written will should include specifics on who you want your children’s guardian and trustee to be, and whether or not those roles are to be held by one person or two. If you don’t specify these roles, your children’s guardian and trustee will be selected by a court in accordance with the Adult Guardianship and Trustee Act, the Wills and Succession Act, and the Estate Administration Act.
Other Factors to Consider
These statute laws exist for a reason, but since they aren’t tailored to each individual, they can’t take into account how you would like less specific matters to be addressed or carried out. A robust will should also specify what you would like to happen to your physical remains, what sort of funeral or memorial service you would like and set aside money to cover these expenses.
It should also outline what happens to your pets, should you have any. In this modern era, you may also want to specify what you want to happen to your digital assets, like social media accounts, and designate a person to carry out your wishes.
Power of Attorney
Another thing you should consider when drafting a will is your Power of Attorney. It’s not actually part of the will since a will concerns what will happen to dependants and property upon death, but it is still something that needs to be addressed.
Unfortunately, sometimes illness or injury removes our legal capacity (our ability to think and foresee reasonable consequences), requiring someone else to manage our property and affairs.
Power of Attorney can be granted by a person, called the donor, to another person (the Attorney), giving them the authority to manage the donor’s property and affairs and make financial decisions when the donor has no capacity to do so. Power of Attorney is granted through a couple of documents called Enduring Power of Attorney and Personal Directive. These can be drafted by a law office offering estate planning services. While the Enduring Power of Attorney covers decision making on your finances, investments, and properties, the Personal Directive deals with health decisions making like medical treatments, living arrangements, health care, and other related decisions.
The Power of Attorney only comes into effect when the donor loses capacity while a will does not come into effect until death of the testator.
When Should I Start Creating a Will?
Never put off to tomorrow what you can do today, and estate planning is no exception. Life can take some unexpected turns and leaving an estate without a will can make it difficult for your friends and family to plan your funeral and ensure your assets are divided in accordance with your wishes. Leaving an estate to be divided according to statute law is both time-consuming and energy-intensive and can leave your loved ones exhausted.
In 2018, 51% of Canadians didn’t have a will in place. 25% said they were too young to think about it, and 23% said they didn’t have sufficient assets to justify the trouble of drafting a will. That attitude has left far too many Albertans without the ability to divide their estates according to their wishes, select their children’s guardians, or select someone to handle their affairs if they are ever unable to do so themselves.
What Is the Process of Legally Creating a Will?
To be considered legally valid, a will has to be signed by the testator, which is the person writing his or her own will.
Two types of wills are legally binding:
- One is a formal will, which is typed and bears the testator’s signature at the end. This will requires the signatures of two witnesses, persons who claim they witnessed your signing it. If you contact a law office, they can guide you through this process step by step.
- The other type of will is called a holographic will. It’s a will handwritten by the testator and signed at the end. This type of will, while valid, might not be the best option because handwriting can be easily faked. If you go to the trouble of writing everything out by hand, you don’t want its authenticity called into question.
A will is binding when written and signed by the testator. Ultimately, it’s a simple document, but the consequences of its wording can have a powerful impact on how your estate is divided after you’re gone. A comprehensive will drafted by experienced lawyers can give you the peace of mind you need to ensure that your final wishes are honoured.
This memorandum is for informational purposes only, does not constitute legal advice or an opinion, and does not create a solicitor-client relationship. This is an overview and is not intended to be a complete and exhaustive explanation of the concepts covered. This information may become inaccurate based on passage of time or changes in the law. Nothing herein should be relied upon without seeking the advice of a lawyer.