Disclaimer: The information provided below is intended to be used as a general information resource and should not be taken as legal advice. There are almost always exceptions and contingencies in the law which require an assessment of your specific facts and circumstances. It is recommended that you consult with a lawyer qualified to address your unique needs and situation.
Wills
Everyone should have a will, even if you are young and healthy. Illness or accident can happen to anyone at any time, and you may have more assets than you think. Pension benefits, life insurance plans, and even credit cards with accidental death benefits are often payable to your estate. A will is the only way to control who gets all of your assets.
It is especially important for parents to have a will so they have a say in determining the guardian(s) for their children.
While a lawyer may not be required, hiring a lawyer to draft your will can buy a lot of peace of mind. A lawyer can ensure that the will complies with Alberta law, provides the best tax advantages for your estate and heirs, and accounts for particulars in your specific circumstances. You can also be more assured that the document will stand up in court if contested, and that your wishes will be carried out as intended.
Anyone over the age of 18 with mental capacity can make a will at any time.
You should make a will when you are in good health and of sound mental capacity to ensure it is valid and enforceable. Mental capacity can be affected in a number of ways, including accident, illness or drug treatment.
A good rule of thumb is that you should review your estate plan with a lawyer every three to five years or when there’s a significant life changing event. These changes may include a marriage, divorce, the birth of a new child, or the death of a close friend. Periodic reviews are also important, since you may have obtained new assets since the drafting or last review of your will. You will also want to ensure your estate documents reflect any recent changes in the law.
If you die without a will, there are two major issues that arise. First, nobody has been named as the personal representative (executor) to take care of the administration of your estate. Second, there is no clear written communication of how you want your estate handled. As a result, the government will make these decisions for you.
A witness must be 18 years of age or older, cannot be a beneficiary under the will, and cannot be the spouse or adult interdependent partner of someone who is a beneficiary under the will.
Witnesses do not need to read your will, but they must see you sign your name to the will and sign the will themselves.
You may not need to make a new will. However, to ensure your will meets the requirements of Alberta law, it should be reviewed by an Alberta lawyer.
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Enduring Power of Attorney
An Enduring Power of Attorney (EPA) is a legal document which gives someone you trust the right to act on your behalf concerning your financial affairs, while you are still alive, in the event you become mentally incapacitated. It can stipulate various levels of financial control and power depending on your wishes.
Mental capacity is the ability to understand information relevant to making a decision and the ability to appreciate the reasonably foreseeable consequences of that decision.
In the event you suffer an incapacitating accident or illness, an EPA allows someone to act on your behalf and in your best interests with respect to financial matters.
By preparing an EPA while you have mental capacity, you can ensure your property and finances will be managed by someone you trust.
You will not be able to choose who looks after your financial affairs if you lose mental capacity.
An interested party, such as a friend or family member, will need to apply to become a trustee. This costly court process could take several months and ultimately lead to authority being given to someone who you would not have chosen.
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Personal Directive
A Personal Directive (PD) is a legal document that appoints someone else you trust to look after your non-financial matters, should you lose capacity due to illness or injury. These matters include decisions over housing, health care and treatment.
Mental capacity is the ability to understand information relevant to making a decision and the ability to appreciate the reasonably foreseeable consequences of that decision.
Alberta law does not allow for another person to automatically make decisions for you, including a spouse or close family member. Verbalizing your wishes to these people is not enough to give them a legal right to make decisions on your behalf.
A Personal Directive gives you greater control over your future personal matters and allows you to designate someone to make decisions on your behalf when you are no longer capable.
Family members or other interested parties will have to make a Guardianship Application. This costly court process could take several months and ultimately lead to authority being given to someone who you would not have chosen.
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Probating an Estate (Estate Administration)
The process generally takes 6 months to a year, but can take longer and varies greatly depending on the complexity of the estate. Much of this time is allocated to preparing the application, gathering the necessary information to provide to the Court. Once submitted to the Court, the Grant of Probate will take several weeks up to several months depending on their backlog and if the application is rejected once or several times due to incomplete or inaccurate information.
Once you have received a Grant of Probate, your primary duties as an executor begin. Before funds can be distributed you must settle all debts and taxes against the estate and sell off any applicable assets (i.e. real estate, vehicles) which have not been gifted to a specific beneficiary.
The Canada Revenue Agency may also require a Clearance Certificate before funds may be distributed from the estate, a process that can take anywhere from a few months to a year or longer.
Once a full accounting has been made of the final assets of the estate to be disbursed, issues may arise with conflict and disagreements among the beneficiaries.