June 10, 2017

10 Things to Know Before Making Your Will

Making your will can be a challenging experience. No one wants to think about death or the death of a loved one, but it’s important to have a will prepared in case of an unexpected event to ensure the handling of your estate is a straightforward and easy process for your loved ones. Because a will is a legally binding document that will hold up in a court of law, there are some decisions to be made to ensure that your will is aligned with your best interests.

Making a will is a detailed process, we’ve outlined ten critical points and questions associated with writing a will to help you understand the process.

1) What is a Will?

A “Will” is a written document containing your instructions about what should happen to your belongings after your death.  It’s a legally binding document that ensures your last wishes will be followed and are enforceable in a Court of Law.

2) What is an Estate?

Your “estate” is made up of everything you own personally.  It does not include land, bank accounts, or other assets you own jointly with someone else. It also does not include accounts or assets where you have designated a beneficiary, other than your estate.  Your will outlines how your estate will be distributed, or what will happen to your belongings after your death.

3) What is a Personal Representative?

The Personal Representative is the person named in the will (often referred to as an Executor) who is given the authority and task of carrying out your instructions as contained in your will.  The Personal Representative you select when writing your will is in charge of handling your wishes and settling your affairs. This person will administer your estate until the criteria you’ve outlined in your will is complete.

4) What happens if I die without a Will?

If you die without a will, you are said to die Intestate. There are many issues that can arise in this situation, but the three most immediate and concerning are:

There is no personal representative appointed. There is no one who can immediately attend to the administration of your estate.  Who will eventually become your personal representative must be determined by a Court, according to the method outlined by the Estate Administration Act.

There are no beneficiaries recorded. There is no formal record of who you want to benefit from your estate.  In this, case, your beneficiaries will be determined as outlined by the Wills and Succession Act.

This may or may not follow the way you or your family would want your estate handled.There is no Guardian appointed for your minor children. In this case, the Court will determine who will be your children’s guardian.  This may or may not be who you would have chosen.

5) Is there an estate tax associated with creating a Will?

No, there are no estate taxes in Alberta.  There is a small administrative fee associated with submitting your will to probate.  The exact amount of the fee depends on the value of your estate; but currently, the maximum is $525, for estates valued at over $250,000.

6) Who can create a Will?

In Alberta, any capable adult over the age of majority (age 18 or over) can create a will. In certain circumstances, a person under 18 can make a will if he or she:

• has, or has had, a spouse or adult interdependent partner;
• is a member of the Canadian Forces on active service or a member of the regular force under the National Defence Act; or,
• is authorized by the Court.

7) How do I create a Will?

There are two types of wills in Alberta:

• A holograph will, which is a will written entirely in your own handwriting; and
• A formal will, which is a written will (usually prepared through a lawyer) which is then properly executed with the required signatures and witnesses.

Making a recording of your wishes (either audio or video) is not enough to make a valid will.

8) Who is eligible to be a witness for my Will?

Your witnesses must be competent, and at least age 18.  Your witnesses should not be a beneficiary (or the spouse or adult interdependent partner of a beneficiary), or the bequest (gift in the will) to that beneficiaries may be void.

9) What do I do with my Will after I’ve completed it?

You should keep your will in a safe place, where it can be located when needed.  Often the original will is kept with their lawyer, or a safety deposit box.  You should consider giving a copy to your personal representative, or at least making them aware of its location and method to access it.  You should review your will every few years, and consider updating it when there are changes to your family members, marital status, or a significant financial change.

10) If I write a new Will, does it cancel the old one?

Essentially, yes. If at the start of your new will you write that it revokes your previous will, the previous will is cancelled.  You should not try to change your will by crossing out, rewriting and initially parts of it.  To make minor changes, you may not need to write an entirely new will.  You can change parts or your will with a short document called a Codicil.

If you have any questions or want to start preparing your will, please contact one of our lawyers for a consultation.