Wills & Estates
A Will is a document that takes effect only after your death. Even though you will have passed on by then, a Will is one of the most important documents you will sign during your lifetime. A Will names who will manage your estate, lays out your wishes for your family, protects your property from unwanted claimants and provides for those you leave behind.
If you die without a Will, intestate rules come in. Who cares for your children or how your property is then issued to family may not align with your wishes or expectations. Competing issues and claims can mean your loved ones are forced to litigate over what is left behind.
Making a Will:
Believe it or not, Wills are often fought over in court. The drafting of a single word in a Will can have huge consequences in how it is interpreted later. There are also rules about what makes a Will viable. If the proper procedure is not followed in the drafting and signing of your Will, it could be disqualified and rendered void. It is important to have your Will prepared and signed with an experienced lawyer to ensure the best possible protection of your intentions.
Changing your Will: Review your Will on a regular basis and after major life events (such as marriage, children, divorce, death of a family member, etc.) to make sure it still fits your preferences. After a major life event, you should get legal advice from a lawyer about what your Will should include or how it could be changed.
Our lawyers are experience estate lawyers that understand both the personal aspect of your Will and the laws surrounding it. We make sure your Will suits you and you family, while holding up as a robust legal document.
Where should I put my Will?
Note: It is very important to put your Will in a safe place. Consider a fire-proof safe. It is also important that your family knows where to find it, or that it is otherwise in a logical place they would think to look. Having a Will doesn't do anyone any good if it's hidden so well it is never found. Only the original Will is acceptable, copies can not be used.
If you have minor children, you should have a Will.
In your Will, you can appoint a guardian to your children. This is true whether you have a spouse or are separated from the other parent. In the event that the other parent predeceases you or if there is a custody dispute, you will want to confirm your intention in your Will regarding who will raise your children and make decisions for them in your absence. This is an incredibly important decision that might have to be made by a court if you do not have a Will.
Your Will should also provide for your children financially. You can dictate how you want your children to receive their inheritance, such as by creating a trust. Naming a trustee to manage your children's finances will mean choosing someone who is reliable, trustworthy and will act in their best interests. If you do not properly provide for your children or dependents in the Will, your estate can then be sued for their financial support.
If you pay child support, your Will will have to accommodate your support obligations to avoid disputes and litigation after your death.
When you separate from your spouse, a number of important things in your life change. These include your family structure, your support obligations and your property entitlement.
Many people don't think to change their Wills right away when they separate. There are different rules on how your Will is treated at different stages of your separation and depending on if you are a married spouse or an adult interdependent partner. It's always wise to speak with a lawyer about how your separation interacts with your Will.
Our lawyers work extensively in both family law and estate law and can provide you comprehensive advice and direction.
Remember that even if you change your Will, your investments, RRSPs, Life Insurance and other assets likely have named beneficiaries. These will need to be changed directly with the provider after separation.
For more information about our family law practice, see our Family Law page here.
So someone was prepared and had a Will, but what actually happens to it after death?
It is important that your Will is in a safe place and can be found by your family after you pass. Once they have found your original Will, it will submitted to Surrogate Court for review and a Grant of Probate. The Court will determine the Will is valid, review any claims and provide the authorized paperwork to allow your Personal Representative to carry out your wishes as directed in your Will.
The Personal Representative (previously called an Executor) is named in the Will to manage the estate of the deceased. As the Personal Representative, it's your job to probate the Will and issue the estate.
The paperwork involved to probate a Will can be confusing. Our lawyers know the ins and outs of Surrogate Court rules and can complete probate for you. After the Grant of Probate, there are still a number things involved in disbursing the estate. We can help you navigate the process from beginning to end.
If you die without a Will, you die "intestate." Without a Will, the law fills in to disburse your estate. Someone will need to be granted authority to act for your estate as the Personal Representative, named in the Grant of Administration. After the Grant of Administration, the Personal Representative will have to disburse your estate in accordance with the law.
The Wills and Succession Act of Alberta lays out how your estate will be disbursed if you die without a will. The Act creates a line of next of kin entitled to your estate. The ones who will inherit your estate may not match the how or who you intended.
The paperwork involved to administer an intestate estate can be confusing. If multiple family members step into the process, it can be very complicated. Our lawyers know the ins and outs of Surrogate Court rules and can complete administration for you. After the Grant of Administration, there are still a number things involved in disbursing the estate. We can help you navigate the process from beginning to end.
A Power of Attorney is a document that appoints someone to manage your financial affairs if you become unable to manage them yourself. Generally, a Power of Attorney comes into effect because your mental or physical health has deteriorated, leaving you incapacitated.
Your “Attorney” becomes your representative and will have the power to deal with all of your financial matters, including: accessing your bank accounts, writing cheques in your name, paying your bills, managing your investments, withdrawing funds, and even selling or mortgaging your property. Your Attorney should be someone very trustworthy that will respect your wealth and property.
There are two ways a Power of Attorney can come into effect:
- Immediate – as soon as you sign the document, your Attorney has all the same powers as you to deal with your assets ( i.e you still can make financial decisions, make deposits and withdrawals, sell and mortgage etc. BUT, at the same time, your attorney has the same powers – a high degree of trust is important here);
- Springing – your Attorney’s powers only comes into effect in specific circumstances: if you are found to be mentally incapable of making your own decisions or physically incapable of expressing those decisions. (Of course trust is important here as well, and you are now in circumstances where you must rely on the Attorney to make your financial decisions for you).
A Power of Attorney is an incredibly important document that creates wide spread powers over your financial life. It is vital to get legal advice before signing such a document.
Our lawyers are experienced estate lawyers that listen to your needs, understand the law and will advise you of the potential legal consequences before you. We can draft and provide advice on Powers of Attorney and other testamentary documents.
A Personal Directive is a document that appoints someone to manage your personal and health matters if you become unable to manage them yourself. Generally, a Personal Directive comes into effect because your mental or physical health has deteriorated, leaving you incapacitated.
Your Personal Directive will appoint an Agent to make decisions on your behalf. These decisions include where you live or when to stop medical treatment. You can include all of your preferences in the Personal Directive to guide your Agent according to your wishes. Your Agent should be someone close to you, who knows your personal values and religious beliefs, someone you trust to make decisions over your body, medical treatment or manner of death.
Our lawyers are experienced estate lawyers that listen to your needs, understand the law and will advise you of the potential legal consequences before you. We can draft and provide advice on Personal Directives and other testamentary documents.
If an adult loses capacity and they do not have a Power of Attorney or Personal Directive, someone can step in. An adult no longer able to make reasonable decisions about their finances and care may need a Guardian and/or Trustee.
Someone can be appointed as a Guardian and Trustee, to manage the Dependent Adult's affairs. An application to the court to appoint a Guardian or Trustee involves many steps, including a capacity assessment.
If no one is willing or able to act on behalf of the Dependent Adult, the Office of the Public Guardian and Trustee can become the legal guardian or trustee.
Our lawyers at Kinetic Law can assist with commencing or defending applications for Guardianship and Trusteeship.
Unfortunately, sometimes legal matters surrounding estates give rise to disputes. When disputing parties go to the court for relief, that process is called a litigation.
A person may need to go to Court to:
- challenge the validity of a Will
- seek advice and direction to interpret a Will
- claim a gift
- claim support for minor children
- claim support for adult dependent children
- claim support for a dependent spouse
- determine the rightful heir in intestate administration
- seek an accounting of the Attorney or Personal Representative under a Power of Attorney or a Will
- challenge the competency of a Personal Representative
- challenge the appointment or competency of an Attorney or Agent
- challenge the application or appointment of a Guardian or Trustee
Our lawyers are very experienced in court matters. They can claim or defend your position in court with skill and dedication. Our lawyers will put your best foot forward, presenting your case as zealous advocates.
Litigation involves a number of steps, from drafting court documents, to completing questioning, to attending a hearing in front of a judge. How estate matters get through the court process is regulated by a series of rules in the Alberta Surrogate Court Rules. The paperwork, court room decorum, rules of court and rules of evidence involved in a litigation can be very overwhelming. Our lawyers have the knowledge and experience to manage your litigation properly.
We remind you that there are many ways to solve legal disputes that do not need to involve the stress, uncertainty and animosity of court. The court process is slow, expensive, rigid and draining. It can takes years to take your estate matter to a hearing or trial. Once you get there, a judge does their best to decide the very important matters in your life based on competing versions of the story and competing evidence. We strongly recommend you consider alternative dispute resolution options such as mediation or negotiation before jumping to court. We offer these alternative dispute resolution services at Kinetic Law. For more information, see our ADR page here.
If matters cannot be resolved outside of court, we have the experience and drive to take your matter all the way to the end of a litigation, while still seeking out the best solutions for you.
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