It is a question we don’t like to think about, but it is a question we ask ourselves from time to time: What will happen when I am gone? The best answer is to prepare a valid Will. A Will that states your intentions and takes care of the people in your life and your items in the way you want to.
A Will is a written document that provides your instructions to the world, and to your executor, stating how you want your property distributed on your death.
The directions you set out in your Will may include the following:
who will receive which assets,
who will receive what percentage or amount of money,
what to do with your business,
which debts are to be forgiven or collected,
how debts are to be paid;
which charities should benefit from your property,
to leave a life estate to someone to use the property, and who to give the property to after the life estate, or
to establish a trust fund for children, spouse, charity or other persons.
Your Will should be planned in a cost effective manner. I will discuss with you the advantages and disadvantages of various methods of estate planning in conjunction with your particular family and business circumstances. The passing of a loved one is a traumatic experience, and if you have the proper estate documents drafted ahead of time, it will greatly ease the administration of your estate and make this easier on your family.
Is a Will necessary? There are a number of very good reasons to have a Will.
Firstly, having a valid Will gives you control over your estate. In order to do this, it is essential to have a Will that is properly drafted and executed. If you do not have a Will, then your estate will be probated under the terms of the Wills and Succession Act (Alberta). The Wills and Succession Act sets out who receives what portion of your estate and when they shall receive it. You, and your family, will have no control over the timing of the distribution, no control over debts, no ability to establish a trust or life-estate for a family member’s benefit, no ability to do tax planning in a way advantageous to your estate, etc.
Secondly, some people believe that if they have all their property in joint names with a spouse or with named beneficiaries, that they do not need a Will. However, there are situations where both people may perish in a common disaster, or very close to each other. If this arises, the property would likely fall into your estate and without a Will, that property will be distributed according to the Wills and Succession Act.
Thirdly, a Will allows you to name a legal guardian for your minor children. If you have minor children you want your family / friends to avoid the unnecessary time and costs of convincing the court who to appoint as legal guardians, and if there may be some conflict in your family, it lets them know who you want. If you have a legal guardian named in your Will, your wishes are generally followed. This gives you control over who will raise your children.
You may not be aware of this but funeral arrangements and burial wishes can also be listed in your Will. Although a Will is a document that gives authority only to the distribution of property, any provisions that you place in the Will are strongly listened to and accommodated by your executors and the courts.
Fourthly, a Will is no longer deemed null and void upon your marriage. If you have a Will from prior to your marriage, you should review it to ensure it still reflects your wishes. Also, if you are going through a separation or divorce, this does not void your Will. If you have a Will and are going through a separation or divorce, you should have that Will updated to make sure it reflects your current wishes.
Fifthly, a Will should be reviewed at least once every five (5) years for accuracy and to see if any life changes may have occurred that require your Will to be updated. You may need to change your executors, the named guardians of your children, your beneficiaries or how you distribute your estate.
Lastly, it is important to be aware that there is legislation and case law that may restrict your choice of distribution of your estate. These are in place to ensure that your dependents have sufficient means to take care of themselves after you have passed. The Wills and Succession Act (Alberta) is in place to protect dependents, whether children, adult children or spouses. The Adult Interdependent Relationships Act (Alberta) protects spouses in unmarried relationships and covers a range of personal relationships that all fall outside the traditional definition of marriage. The Dower Act (Alberta) gives rights to a spouse regardless of whose name the real estate is registered in. The Family Law Act (Alberta), and the Matrimonial Property Act (Alberta).
In conclusion, I strongly recommend to everyone that a valid Will is a necessary document regardless of whether you have a large or small estate, regardless of whether you have all your property in joint names or with named beneficiaries.
A Codicil is a short addendum to your Will that changes some paragraphs of your Will. It is useful if you want to keep most of your Will as it is written, but want to change one or two parts of it: i.e. name another executor, add another beneficiary, change the percentage of distribution, give a specific item to a person, etc.
I would be happy to discuss your wishes and your circumstances and provide you with legal advice and guidance in drafting and executing your Will and Estate Planning documents.