A will is the only way you can leave instructions regarding the distribution of your earthly belongings when you’re gone. Whether your final wishes are respected depends on whether you have a will, what it says, and whether it is worded correctly.
A will is a legal document that governs your estate – all of your assets and your debts accumulated at the time of your death – other than assets that have a designated beneficiary (such as RRIFs, RRSPs, TFSAs, etc.) or which are jointly owned.
Without a will, wrapping up your estate can be complicated, and your assets might end up going to someone you didn’t intend (or even like). Estates without a will are divided up according to the provisions in the Wills and Succession Act (“WSA”). Moreover, the person responsible for managing the division of your estate (the personal representative) will be selected by the court using the rules laid out in Alberta’s Estate Administration Act (“EAA”). If you have a will, you determine who will become your executor (personal representative) and what happens with your assets.
DIY Route Isn’t Always Best
Although it is possible to prepare a will by yourself, you should consult a lawyer for assistance. A lawyer can draft a will that addresses your wishes properly, can answer any questions you may have, and can advise on what happens if you leave anything out. If the clauses in your will are not properly drafted, it can result in specific gifts, or even the entire will, being void. As you can see, a poorly drafted will can lead to even more problems than no will at all!
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 recognized:
- One is a formal will, which is typed and bears the testator’s signature at the end. This type of will requires the signatures of two witnesses (persons who claim they witnessed your signing it) The witnesses cannot be beneficiaries under your will, or any gift to the witness will be void.
- The other type of will is called a holographic will. This is a will handwritten entirely by the testator and signed at the end. This type of will, while valid, requires additional steps to be authenticated and there are many more grounds for it to be challenged by interested parties. If you go to the trouble of writing everything out by hand, you don’t want its authenticity called into question.
A will is effective when written and signed by the testator. While it can be as simple or as complex as you want, the consequences of its wording can have a powerful impact on how your estate is divided after you are gone. More importantly, you will not be around to clarify what you meant if the wording is ambiguous and this can lead to disputes amongst your loved ones.
What Needs to be Included in a Will?
Name an Executor
In your will, one of the most important things to outline is who will be the executor of your estate (called a personal representative in the Estate Administration Act).
This person has a duty, among other things, to:
- Manage the estate
- Protect the assets of the estate
- Determine and keep track of all assets
- Search for and pay any debts, including funeral costs
- Conduct any litigation on behalf of the deceased and the estate
- Engage professional advisors such as lawyers and accountants
- Ensure that the final tax returns are filed and paid
- Distribute estate property to those named by the will
That can be a big job, so it’s important to familiarize yourself with best practices for nominating personal representatives.
A beneficiary is someone who is the recipient of some or all of your estate. You can leave a specific gift to a beneficiary (such as your wedding ring, your hockey card collection or a specific amount of money). You can also leave portions of everything that is not specifically gifted (called the “residue”) to one or more persons.
Regardless of how you choose to split up your estate, someone should be entitled to the residue of the estate in case you do not dispose of your entire estate by specifically naming beneficiaries.
Guardianship & Trusteeship
Guardianship refers to who will care for and raise your children, whereas a trustee is someone who will manage the assets you have left for your children until they are legal adults. While you may choose to make your children’s guardian and trustee the same person, you can appoint different people if you want.
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 the same person(s). If you don’t specify who is to care for your children and there is no other legal guardian at the time you die (such as the other parent), at best someone will have to make an emergency application under the Family Law Act, and at worst your children may end up in foster care or in the care of the other parent who may not be fit to be a custodial guardian.
Other Factors to Consider
Estate laws, such as the WSA and EAA, exist for a reason, but they are not tailored to each individual’s circumstances, beliefs and wishes, and they do not take into account how you would like specific matters to be addressed or carried out. A robust will should also express your wishes as to:
- what you would like to happen to your physical remains and what sort of funeral you would like
- what happens to your pets
- who may have access to your digital assets, such as social media, email and banking accounts
When Should I Get a Will?
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 in limbo, 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.
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, if they even know what they are. Leaving an estate to be divided according to law is both time-consuming and energy-intensive, and can leave your loved ones emotionally and physically exhausted. A comprehensive will drafted by experienced lawyers can give you the peace of mind you need to ensure that your final wishes are honoured and your loved ones are taken care of.
At KH | Dunkley Law Group, we will take the time to discuss YOUR circumstances and draft a will that is catered to YOUR specific needs and wishes. Our knowledgeable lawyers are very experienced in drafting wills and other estate planning documents. We make the process efficient and easy to ensure that you can take comfort knowing your estate has been planned and organized.
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.