Did you know that the most important estate planning document is not necessarily a Will.
If you die without a Will, Part 3 of the Wills and Succession Act (Alberta) governs how your estate will be distributed and provides a priority for persons entitled to apply to act as your Personal Representative (akin to an Executor) to deal with your estate. In many cases, the legislation provides for your estate to be distributed in a manner that is typically desired by many clients – first to your spouse, then to your children and then down the line of descendents.
If, however, something should happen to you while you are still alive but lack the mental capacity by reason of injury or illness to express your wishes or deal with financial matters on your own, your spouse and children do not have a default in law to make those decisions for you. Under an Enduring Power of Attorney, you can give your spouse, adult children and/or friends the legal authority to deal with your financial matters in the event you yourself cannot. Similarly, through preparing a Personal Directive, you can give your spouse, adult children or your friends the legal authority to make personal decisions, including healthcare and end of life decisions, for you in situations where you are unable to make decisions or express your wishes.
In the absence of an Enduring Power of Attorney and/or Personal Directive the only way that a loved one or friend can obtain the legal authority to make decisions for you is to apply to become your legally appointed Trustee and/or Guardian through the court process pursuant to the Adult Guardianship and Trusteeship Act (Alberta). These applications are lengthy, time consuming and very expensive. Very few lawyers will provide assistance for these applications, and those who do will require a very large retainer, typically in the $5,000.00-$10,000.00 range at the outset.
What is a Will?
ANSWER – A Will is a legal expression of the disposition of your estate upon your death. It can also include guidelines for the disposition of your remains and funeral arrangements.
Why should I have a legally valid Will?
ANSWER – The most important reasons why you should have a Will are:
- if you have children under the age of 18 years – a Will allows you to appoint a Guardian for those minor children.
- if you believe your children are not responsible enough to inherit your estate at age 18 – a Will allows you to establish a trust for your children to receive the entire share or portions of their share of your estate at an age or ages older than 18 years.
- if you are in a common law relationship and you want to provide for your common law partner – your common law partner may not yet fit the definition of “spouse” under Alberta legislation so as to entitle him/her to a portion of your estate after your death. The law states that you and your common law partner must:
- have lived together continuously for a period of not less than 3 years;
- have a child of the relationship; or
- have entered into an adult interdependent partner agreement
- if you are single with no dependents – if you would like to gift to someone other than distant blood relatives, you should prepare a Will.
- if you own real estate or have assets in your name only – Financial Institutions and Land Titles require a Grant of Probate or a Grant of Administration be obtained for property that you own in your name only. in the absence of a Will, interested parties, assuming there are any, will be required to step up to the plate and apply for a Grant of Administration for the authority to deal with your estate. This may result in lengthy litigation amongst family members which in turn eats up estate assets. More importantly, the court might end up appointing someone to deal with your estate that you would have been opposed to.
- if you are part of a blended family – step children are excluded from the definition of children under our legislation and so they will not inherit from your estate. Similarly, if you have begun to co-mingle assets with your new spouse, but have children from a previous relationship that you would like to ensure receive something upon your death or upon the death of both you and your spouse, then you want to consider preparing a Will or Mutual Wills.
Can I write my own Will?
ANSWER – Yes. A handwritten will is a legally valid Will in the Province of Alberta. Handwritten Wills are coined “holograph wills” by our legislation. To be a valid holograph Will, the document must:
- be wholly in your own handwriting (not typed up or videotaped);
- signed by you (no witnesses); and
Please do not use a Will kit to prepare your own Will. Many issues can come out of the improper preparation of the same upon your death. Also, it is advisable to seek the advice of a lawyer who regularly practices in this area of law to either review your handwritten Will or to prepare one for you.
What is an Enduring Power of Attorney?
ANSWER – An Enduring Power of Attorney takes effect while you are still alive but lack capacity to deal with your financial matters. Under an Enduring Power of Attorney, you appoint an agent, formally referred to as an “Attorney”, to deal with your day to day finances on your behalf. In the absence of an Enduring Power of Attorney and in the case of your inability to deal with your financial matters, the only other way that a loved one or friend can obtain the legal authority to deal with your finances is to apply to become your legally appointed Trustee through the court process under the Adult Guardianship and Trusteeship Act (Alberta).
Can I write my own Enduring Power of Attorney?
ANSWER – Theoretically yes, but because of the potential litigation that can result from mistakes made in preparing your own, it is advisable to seek the advice of a lawyer who regularly practices in this area of law to prepare one for you.
What is a Personal Directive?
ANSWER – Like an Enduring Power of Attorney, a Personal Directive takes effect while you are still alive but lack capacity to make personal decisions for yourself. Under a Personal Directive, you appoint an “Agent” to make personal decisions for you, including decisions with respect to healthcare, accommodation, employment, socialization and carry out your end of life wishes, if you have any. In the absence of a Personal Directive and in the case of your inability to deal with your financial matters, the only other way that a loved one or friend can obtain the legal authority to make personal decisions for you is to apply to become your legally appointed Guardian through the court process under the Adult Guardianship and Trusteeship Act (Alberta).
Can I prepare my own Personal Directive?
ANSWER – Yes. The Government of Alberta has a form of document that you can fill out yourself. However, it is always recommended that you seek the advice of a lawyer who regularly practices in this area of law to prepare one for you.