Testamentary Documents (Will, Power of Attorney, Personal Directive)
Whether you are in the middle of a divorce, or simply do not yet have a will, enduring power of attorney, or personal directive, it is always a good idea—and not too late—to plan for the future.
What is a Will?
A will is a legal document that allows you to control what happens to your estate (your “stuff”) after you die.
In Alberta, a will typically does the following:
1. A will appoints a personal representative (sometimes referred to as an executor, trustee, or administrator) to manage your affairs after you die. This person will be responsible for carrying out the wishes in your will. A personal representative must be someone you trust—usually a younger family member or a lawyer.
2. A will directs how to distribute your property after you die. Often the testator (person who wrote the will) will first give or bequeath specific gifts to specific people—for example, give his antique cigar ring collection to his lawyer nephew.
Second, the testator will indicate how he would like to divide the residue of his estate (ie. what monetary value remains after the specific gifts are given, and all the outstanding debts are settled). For example, he may want to divide the remainder equally amongst his children.
Third, it is often a good idea to declare where the residue should go if there are no surviving heirs. Usually this is given to a charity. If not, the government will take it.
3. If you have children, you can name a guardian to take your place in the event of your death. This is especially important if you have young children, and if you are embroiled in a high conflict parenting dispute.
4. You can also provide instructions regarding your funeral and physical remains in your will. For example, would you like to be buried or cremated?
Having a will is important because it provides some certainty for everyone after you die. It can also relieve stress for your family as they grieve.
Types of Wills
In Alberta, there are two different “types” of wills, although they ultimately serve the same purpose.
- Formal Will – A formal will must be in writing and must be signed by you. Your signature must be witnessed by two other people, who also sign the will in your presence. Although you do not need a lawyer for a witness, it is typically a safe bet to execute your will with a lawyer.
- Holograph Will – This refers to an old-fashioned will which is both handwritten and signed by you.
To be valid, the wills must comply with the requirements set out in the Alberta Wills and Succession Act.
What are the Benefits of Having a Will?
There are numerous benefits to having a will. For example:
- You Can Give Specific Gifts – A will allows you to give specific gifts to specific people, and to direct how to divide your estate. This way you can ensure that your loved ones are cared for after your death, and receive your personal effects that may have sentimental value.
- Someone Trusted Will Handle Your Estate – A will lets you appoint a person to be your personal representative (trustee, executor, administrator) to handle your affairs after you die. This way you will be sure that your affairs will be handled by someone who has your best interests at heart.
- You can Specify Funeral Arrangements – If you die without a will, there is no guarantee that your estate will dispose of your remains as you wanted. In a will you can indicate whether you would like a funeral, and how you would like your remains disposed of. You can be specific or general, depending upon your wishes.
- You Can Appoint a Guardian for your Children – If you have young children, it is very important to ensure that they have an appropriate guardian in the event of your death. Often, this guardian will be your spouse. However, if you are going through a divorce then you may want to appoint someone else—the child’s godfather or godmother, aunt or uncle, or grandparent—as a guardian
- Save Time & Money – Having a will in place makes it much easier for your family to deal with your estate. This reduces administration fees, and helps ensure that your estate is dealt with in a timely fashion. A will also allows your personal representative to deal with the banks, and other service providers, in the event of your death.
- Reduce Tax Burden – A will notifies your estate of all of your assets. This can allow them to better plan how to dispose of the assets so as to reduce the tax burden.
How Do I Amend (Change) a Will?
To amend your will you will either need to prepare a new will, or draft a codicil to the will. A codicil is something like an “add-on” to an existing will, and is typically used for small changes or additions. If you are making major changes, then we recommend preparing an entirely new will.
What Happens if You Die Without a Will?
If you die without a will, your estate will be dealt with according to Part 3 of the Alberta Wills and Succession Act. Generally, this means that your immediate family, or their family lines, will inherit your estate. If you are married, your spouse may inherit your estate—even if you are contemplating separation, or in the process of getting divorced.
If you have no spouse or immediate family, then your more distant relations will inherit your estate. The government of Alberta has provided a useful chart (reproduced below) to help understand how property is dealt with for people who die intestate (without a will):
Contact an Lawyer About Preparing a Will Today
Whether you are going through a divorce, or simply need a new will, power of attorney, or personal directive, the lawyers at Morrison LLP can help. Feel free to call us at 587-758-1099. The first 30 minutes of the call is free.
Although we are based in Edmonton, we are proud to serve much of northern Alberta, including the following communities:
- Edmonton & Area – Sherwood Park, Beaumont, Leduc, Fort Saskatchewan, St. Albert, Spruce Grove, Stony Plain.
- North – Athabasca, Morinville, Westlock, Gibbons, Barrhead, Redwater, Peace River, High Level, Fort McMurray.
- West – Drayton Valley, Edson, Hinton, Whitecourt, Devon.
- South – Camrose, Wetaskiwin, Millet, Calmar.
- East – Vegreville, St. Paul, Cold Lake, Bonnyville, Vermillion, Wainwright, Tofield.