Calgary Wills Lawyer
Need a new will? Need to update your old will? Calgary wills lawyer can help you.
A will is a legal document by which a person (the “testator”) names one or more people to manage their estate and provides for the distribution of all their property. In Alberta, a will must comply with the Wills and Succession Act in order to be valid. The common law also plays a major role in the whole area of wills and estates.
How Do I Name An Executor In My Will?
A properly made will document will name one or more people as “trustees” to be the executor or executors of the estate.
If the trustee is a male, their are called an “executor”. If female, they are called an “executrix”. The fact is, they are both trustees. A trustee is someone who holds property “in trust” for another. It is a responsible position. They must follow the rules about being an executor. They must do a lot of work. You want to give a lot of thought as to who you want your executor to be.
Typically, husbands and wives will appoint their spouse to be their trustees in the event of their death. But what if both husband and wife pass away at the same time, in the same accident? Who will be the trustee then? That’s why it is good to also name alternate trustees in your will. Talk to a lawyer.
Who Will Inherit My Property?
A well crafted will gives away all of the property of the person making the will. It will specify the beneficiaries who are to inherit the property of the deceased. Sometimes it is appropriate to actually name the beneficiaries (for example, “John Doe”) and other times it is appropriate to specify the category of beneficiaries (for example, “my brothers”). Each situation is different. This is just one of the many things to talk to a lawyer about.
It is usually important to specify what happens if one of the beneficiaries dies prior to the testator, or at the same time in an accident. This means that if you left everything to your spouse, well what happens if you and your spouse die in the same accident? What if one or more of your children is there as well? Similarly, if you left everything to “my brother”, what happens if your brother dies before you do? Do his children then get everything? Or his wife? Someone else? If your will doesn’t take these possibilities into account, there can be unintended consequences.
In the case of specific bequests where you give away specific items (for example “I leave my piano to my sister”) it is usually important to specify what happens if the specific item is no longer owned at the time that the will comes into effect. Should they get something else, or nothing at all?
Did you know that life insurance often does not fall under the will and gets disposed of separately? This can be risky ground, especially if there has been divorce. Your wills lawyer will help you consider all of the standard possibilities that might arise so they can all be taken care of.
Should I Appoint A Guardian For My Children In My Will?
Depending on the situation it may be advisable to name a specific guardian or guardians in your will to look after your children if you are gone. The Office of the Public Guardian may become involved. This is like a department in the Alberta government which can become involved in protecting the guardianship rights of minor children.
A “guardian” is someone who makes non-financial decisions about another person. It would be the guardian who typically makes decisions about where the child would live (probably with the guardian) and what school to go to and such things. Basically all things but not financial.
Can Minor Beneficiaries Get All The Money?
Sometimes the parent dies and leaves everything, either in their will or by operation of law, to their children. What happens if those children are young? Can they get it all right now, or do they have to wait?
There are specific rules in place to cover these eventualities. Talk to a lawyer. It depends on the situation. The Office of the Public Trustee can become involved. This is like a department in the Alberta government which looks after a number of things, including protecting some of the rights of children. Probably the children will have to wait until they are old enough as specified in the will, or 18, or how it gets worked out. Talk to a lawyer.
Having said that, it is fairly common for at least some of the funds to be paid out the the Guardian of the children for use for the benefit of the children. Every case is different.
It is extremely important that none of the beneficiaries be a witness to the signing of the will as this can dis-inherit them.
What Else Should A Will Include?
Each situation is different as to what should be included in the will. There are many areas that need decisions made, such as what if one of the beneficiaries dies, who (if anyone) will get their share of the estate.
There should be “trust provisions” that set up trusts for the trusts to hold property on behalf of the beneficiaries.
It is sometimes important to include what type of funeral arrangements you would like in the will. Or maybe you leave that decision up to the trustee.
These things and more are all best discussed with your wills lawyer.
Should I Just Buy A Will Kit Online?
“Free wills” and will kits bought online or in stores are extremely problematic and dangerous. Never use a will where you just “fill in the blanks” and then sign it. Our advice is that you never make a will unless it is with a lawyer. And that your estate documents include the following:
There are many other rules that have been developed over the years when it comes to the making of wills. Wills are powerful legal documents. If not done properly there can be long and bitter fights afterword. Fights which usually burn up large legal fees in the process. Much better is to spend a few hundred dollars now to get a proper will set done up now in order to save thousands or tens of thousands of dollars later.
Wills – The Law in Alberta
The law regarding wills is set out in the common law and in the statute books. The primary Alberta legislation applicable to the making of a will is the Wills and Succession Act. Here is a copy of the table of contents to just Division one of that act, to give some idea of the thrust of that legislation.
Wills and Succession Act
Table of Contents
Part 2 — Wills
Division 1 — General
Legal Effect of a Will (These are the main empowering sections of the Act.)
9 Dispositions of property by will
10 Property disposed of before death
11 General disposition
12 Powers of appointment
13 Who can make a will
14 Requirements of a valid will
15 Formal will
16 Holograph will
17 Military wills
18 Active service
20 Witnesses to signature
21 Certain dispositions are void
Alteration, Revocation and Revival of a Will (These sections codify what is required to alter, revoke or revive a will.)
22 Alteration of a will
23 Revocation of a will
24 Revival of a will
25 Gifts to ex‑spouse or former adult interdependent partner
26 Interpretation and evidence
27 Will speaks from time of death
28 References to children, descendants or issue
29 References to having no issue
30 Disposition to “heir” or “next of kin”
31 Disposition to “issue” or “descendants”
32 Where beneficiary dies before testator
33 Where gift is void or contrary to law
34 Portion of estate not disposed of by will
35 Gift for charitable purpose
Court Orders (These codify some of the powers that a Court has.)
36 Court may authorize minor to make a will
37 Court may validate non‑compliant will
38 Court may validate non‑compliant alteration
40 Validation of gift to witness
This is just Division One. There are two other Divisions that we have not listed here. The point being made is that the law surrounding “wills” is sometimes precise and sometimes complicated. It is essential when you are preparing a will that you do so with a lawyer. It should be the lawyer who prepares the will. They have the experience and knowledge.
Over 30 years of experience as a Calgary wills, estate and probate lawyer.