Would your will be considered legally binding?

The criteria to meet include the following:

• Was the testator of sound mind when the will was written?
• Does the will include the testator’s actual signature instead of a digital signature?
• Does it contain the signatures of two witnesses who are not beneficiaries of the will?

Storage of a will

Informing loved ones where to find the will could help them settle the testator’s affairs smoothly. A safety deposit box at home or a bank could provide safe storage or it could be kept on file with a notary or lawyer who assisted with drafting estate plans.

Keeping estate plans current

With all the possible changes and developments in life, estate plans need reviews in the years following its drafting. Some major life events could necessitate adjustments to the will and other estate documents. For example, the birth of a child or grandchild, divorce, marriage and more could make it necessary to update any arrangements. Changes in the Alberta laws might be another reason to revisit estate plans.

A will could include instructions or information about final arrangements, but it is optional. However, it could reduce the trauma of the loss when loved ones arrange the funeral and burial. These wishes could be included in the will in an effort to make sure the testator’s preferences and desires are met.

The estate representative may also have the following responsibilities: 

• Locating the final will of the deceased person. 
• Locating the will’s beneficiaries and notifying them. 
• Making payment of estate fees. 
• Arranging to get the estate’s value appraised. 
• Applying for the validation of the will by the court. 
• Completing the deceased person’s final tax return along with those required for the estate. 
• Paying all outstanding debts after notifying creditors of the debtor’s death. 
• Following the instructions in the will and dividing the estate accordingly. 
• Preparing financial reports for all the beneficiaries of the estate. 

If the deceased did not have a will in place, the law would determine how to distribute the assets. 

In some cases, the estate representative is responsible for discovering all the deceased person’s assets and evaluating them. These may include the following: 

• A bank account with money or cash funds 
• Real estate 
• TFSAs, RRSPs or other registered plans 
• Mutual funds, bonds, stocks or other investments 
• Personal items of value 

Once all the assets are identified, the representative will be responsible for their safekeeping until the estate’s finalization. Being the representative of an estate is a significant responsibility, and there may be many questions about duties and responsibilities. Anyone in Alberta who accepts the assignment can seek legal and financial guidance. 

Charities could be directly or indirectly named as the beneficiaries of wills. Some programs offered by banks allow people to make donations to gift funds. The funds have specific advisory rights that include the following:

• Selecting the fund’s name
• Allocating the value of the yearly grants from the gift fund to donate to charities
• Naming the successors who will manage the gift fund

It also offers the opportunity to arrange for beneficiaries to make ongoing donations in the name of the testator or the family’s name.

Different banks and private non-bank entities in Canada offer charitable gift programs or private giving foundations with varying minimum amounts required. For example, some require $25,000 as a minimum, and others require $10,000. These donor-advised funds are flexible, allowing beneficiaries to continue gifting funds to charities in memory of the testator.

Other options include creating donor-advised funds directly with charitable organizations. Furthermore, the charities might allow the donor or the estate to make recommendations related to the donated funds’ applications. These recommendations are usually non-binding.

Everyone should have a will, and although it need not be overly complicated, the options to personalize a will are endless. A will ensures that loved ones are provided for and that the testator’s legacy is protected. To achieve this, some Alberta residents are creative in structuring their wills and other estate planning documents.

In second marriages, the estate might be left to a new spouse and the testator’s children from a previous marriage.

Consider the following matters involving the home:

• In many second marriages, the spouses hold the home as tenants in common to ensure the children of each spouse’s previous marriage receive a portion of the respective parent’s share.
• Many couples choose to include a clause in the will by which the surviving spouse will be permitted to continue living in the home for a specific period.
• Upon expiration of that clause, the house is typically placed on the market for sale, and the proceeds divided as directed in the will.
• The surviving spouse usually has the first option to buy the home from the deceased spouse’s estate.

Addressing the following matters to avoid disputes between beneficiaries:

• Stipulate who will be responsible for the home’s operating costs during the stipulated period prior to its sale.
• Stipulate how the house’s valuation must be handled if the surviving spouse exercises the option to purchase the real estate.

Although some of these issues might seem unnecessary, taking steps in the estate planning process to avoid disputes between the stepparent and the testator’s children is always a good idea. Ensuring that life insurance provides sufficient coverage for the surviving spouse to buy the home is another consideration that will make things easier for those left behind upon one spouse’s death.

When a person dies with a legal will, an executor is named to manage the distribution of assets. In an intestate death, the Wills and Succession Act must carry out those functions and locate any heirs who might have legal rights to inheritances. Fairness is not a consideration under the act because the outcome is not based on each family member’s needs.

The process to identify the heirs starts with a spouse or an adult independent partner. If the spouse or partner is the parent of the deceased person’s children, he or she might inherit the entire estate. The process becomes complicated if there are children of the deceased person who are not the surviving adult partner or spouse’s biological children. In such a case, 50% of the estate might go to the surviving spouse or independent adult partner, with the children receiving the balance.

Another scenario involves grandchildren of the deceased person who lost their parents before their grandparent’s death. If their parents had survived, they would have been entitled to a portion of the estate. Therefore, the grandchildren will be allocated that portion. These are only some of the ways in which the Wills and Succession Act will distribute assets of an intestate estate. People in Alberta could avoid these complications and make it easier for surviving loved ones by establishing wills and estates to control the way their assets will be distributed.

A will could be a powerful document by which people can express their wishes, often including other than immediate family members. Death can come unexpectedly, and having wills and trusts in place can relieve some of the trauma surviving family members go through after the unexpected deaths of loved ones. A will allows a person to bequest specific items to those who would most appreciate it or show gratitude to someone who deserves it. Another available option is to make charitable bequests.

Wills are also the document in which a guardian for children can be appointed. The same person or another individual can be selected as the executor of the estate. This person will have the duty of ensuring the wishes of the testator are carried out. Those who have pushed estate planning to the back burner may benefit from discussing estate planning with a lawyer.

A consultation with an Alberta lawyer with extensive experience in the laws related to wills and estates can answer questions and explain various options. After assessing the unique circumstances and assets of the client, legal counsel can provide specific suggestions. This will allow the client to make informed decisions and the lawyer to draft a will and other estate planning documents in compliance with the province’s laws.

The difference is that a trust is a separate legal entity that actually owns the assets transferred into it. The trustor can put real estate, bank accounts, mutual fund units, stocks, bonds and private business assets in the trust. A claim to challenge a will can be filed in an Alberta court of law while a trust’s terms are significantly more difficult to contest. Furthermore, a trust is not subject to the probate process like a will, which makes the details of the will available for the public.

Establishing a revocable living trust allows the testator to revoke or change the trust’s terms as he or she wishes. A trustee is appointed to manage the trust and distribute the assets as described in the trust, either while the trustor is alive or becomes incapacitated, or after the testator’s death. Another option is for the trust maker and his or her spouse to act as trustees while still alive. If the testator dies and the spouse takes over as trustee, the trust will become irrevocable. From then on, only limited alterations to the terms of the trust may be made.

Many people find the prospect of attending to wills and estates daunting, but help is available. Retaining the services of an experienced Alberta lawyer in this field of the law can simplify the entire process. Legal counsel can assess the client’s needs and wishes and explain the various options to allow the client to make informed decisions. The lawyer can then ensure that the necessary documents are drawn up in accordance with the client’s wishes.

In cases where a person who keeps his will and other essential documents in his or her home dies, the first one to reach the deceased person often has access to the papers. If that person realizes presenting the latest will would not be in his or her interest, it should not be difficult to make it disappear. Even if other family members were aware of a new, changed will, if it cannot be found, there is not much they can do about it.

Although it is not a foolproof plan, registration of the will and its details could reduce the risk of a claim that the will was lost. The registration system does not necessarily require a copy of the will to be filed with them. Even leaving a copy of a will with a lawyer may prove to be ineffective if that lawyer retires or dies. Who would then have access to the lawyer’s files?

Even with clear evidence of a more recent will, the law will presume that the testator revoked it if the will cannot be found. If there is also no prior will discovered, the decedent’s estate will be treated according to the applicable intestate laws. The only solution might be to inform all the parties that might expect to be beneficiaries of changes or a new will. However, each person’s circumstances are unique, and utilizing the skills of an experienced estate planning lawyer in Alberta might provide answers to all the testator’s questions about the safekeeping of a will.

If a person dies with an out-of-date will, the court might deem it invalid. Changes in laws and changes in the person’s financial circumstances must be reviewed from time to time. Depending on when the initial will was drafted, a marriage, births of children, divorce and other personal matters may need to be updated in an existing will as they happen.

Furthermore, real estate and other property that is acquired or sold may affect the will. Moreover, the deaths of beneficiaries or designated guardians for minor children will need to be changed or updated. In cases in which a person dies without any immediate living family, a whole new set of rules come into play.

There is no need to put estate-related matters on the back burner. It is always a good decision to seek the support and guidance of an experienced estate planning lawyer in Alberta. A lawyer can assist with drafting a will and reviewing it to make adjustments according to changing circumstances. Legal counsel can ensure that any changes meet legal requirements to avoid having the will declared invalid by the court.

This could involve a family member who believes he or she is owed an inheritance. In many cases, such a court order follows a claim of unjust enrichment by one spouse against the other. To make such a claim, the claiming spouse must prove that he or she suffered deprivation due to the defendant’s enrichment, and the enrichment must have happened without any legal reason.

A constructive trust is necessary when one party has a legal claim to specific property, not necessarily ordered by the court. However, if the court orders a monetary award to the claiming party, as the result of unjust enrichment, a constructive trust is not created. But the court can order the property owner to give the claimant a percentage interest in the ownership of the property, in which case it is called a remedial constructive trust.

Anyone in Alberta who has questions about the right to specific property or inheritance may find the answers by consulting with an experienced estate planning lawyer. Legal counsel can assess the circumstances to determine whether the necessary connection exists between the property owner and the claimant. The lawyer can then explain the rights of the claimant and advocate for him or her throughout ensuing legal proceedings.