A Will is a legal document setting out the framework for the transfer of your personal assets to your beneficiaries upon death.
Without a valid Will your remaining assets are transferred to surviving family members based on rules set out under Alberta Intestate Succession laws. These rules may not always grant property to surviving family members in accordance with your wishes, which can cause problems or disputes among family members if a Will is not done.
Having a Will ensures that your intentions are clearly set out and the legal framework is in place to handle your estate administration more smoothly and cost effectively than where no Will is in place.
In order to complete a Will you need to choose an Executor to administer your estate. Your Executor has many responsibilities, including the duty to make sure that your estate is properly administered; that any taxes or debts are paid; and that your beneficiaries receive their inheritance. These duties are set out specifically in the Will document.
Your Executor usually retains the services of a lawyer to process the estate through the courts with a Grant of Probate and to assist with the transfer property to beneficiaries.
Your Will should clearly state whether there are any specific gifts to any beneficiaries. If no specific gifts are listed in the Will document, all your remaining property(known as the residue), whether it is in the form of chattels, real property or cash and investments, will be grouped together and be passed on in its entirety to the beneficiaries in proportion to their share of the estate and at the discretion of the Executor.
If you have dependent children, your Will should appoint a Guardian for those children, in the event you die before they reach the age of eighteen.
Finally, if you have any assets such as RRSP's or life insurance it is important to review them carefully as they have designated beneficiaries and are paid or transferred to the beneficiary directly upon death and do not form part of your estate.
An Enduring Power of Attorney (E.P A.) is a document which designates a person to be the financial trustee of your estate in the event you become mentally incapacitated or incapable of managing your financial affairs.
The E.P.A. can be created to come into effect immediately and it continues even if you become incapacitated in the future, or it can "spring" into effect at some future date - provided that it has been determined you do not have the capacity to manage your affairs by a medical doctor.
Without an E.P.A. in place, no one can manage your affairs if you lose capacity unless they obtain a Trusteehip Order from the courts under the Dependent Adults Act. There are significantly higher costs to use this approach in addition to the stress and hardship this may cause to family members trying to deal with this.
For that reason, it is extremely important to have an Enduring Power of Attorney in place in order that your Trustee can more easily manage your financial affairs - from banking to investments to the purchase/sale of real property.
A Personal Directive is sometimes referred to as a "living will" - it acts similar to an E.P.A. except that you appoint someone to be your Agent in the event you lose the capacity to manage your own affairs or make decisions over your personal welfare. Once again, the determination of incapacity is made by a medical doctor.
If you lose capacity, your Agent under the Personal Directive has the responsibility to make decisions about where you live, who can associate with you, what kind of medical treatment you shall receive, and the care and maintenance of any dependent children. You can also give legal instructions to your Agent in the document as to what your wishes are for medical treatment in the event your condition is serious.
As with the E.P.A. is it extremely important to have a Personal Directive, otherwise an expensive and stressful guardianship application would need to be made with the courts. We recommend that the person appointed as your Agent also be the same person as the Trustee in the E.P.A., but they do not need to be the same person.
We strongly recommend that a Personal Directive and and Enduring Power of Attorney be completed together with a Will. A person does not always die suddenly and an estate cannot be probated until death. If you lose capacity but do not die, it is critical that your affairs be managed by your Guardian/Trustee during the interim, which could be many years.
The process of preparing your documents is very straightforward - our office will need to have basic instructions regarding the names of your Executor, Trustee/Guardian, or Agent as well as information as to who your beneficiaries are. From that point we can proceed to draft and finalize the documents for final signing. The process to create the documents takes no more than a couple of weeks, depending on the urgency.
Amendments to existing documents are also possible, although we recommend reviewing the existing documents first as normally changes do not have to be made unless there is a specific change of beneficiary or executor.
A person should also review their Will documents if there are significant life changes such as marriage or divorce, or a birth or death in the family that may affect the Will.
Our fee for preparing a Will/Enduring Power of Attorney/ Personal Directive is $650.00 plus GST for an individual and $895.00 plus GST for joint documents with spouses/couples.
If you need extra advice regarding family law estate issues, second marriages or tax advice situations, we can also provide a more specialized lawyer or tax accountant referral.
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