A thoughtfully prepared will is the key feature of any estate plan. The assistance of a lawyer can be in invaluable in ensuring that your will properly conveys your wishes.
Our lawyers can assist you in determining what to put into your will, draw your attention to matters you may not have considered, and draft a document that will give legal effect to the decisions you make.
Our wills cover the basics such as naming an Executor, appointing a Guardian for your children, making specific, residual or charitable gifts, and indicating your funerary and memorial wishes.
In addition to the basics, we can also assist in preparing wills that deal with transmission of any of your corporate holdings, setting up trust provisions in cases where a minor or young adult could potentially receive a large inheritance, setting up charitable trusts, or caring for adult dependents.
A Will contains more than simple list of how you want to divide your property after you die. In fact, the most important part of a Will is the proper appointment of an Executor for your estate and Guardians for minor children. If a person dies without a Will ("Intestate"), then your family will need to apply to a court for permission to appoint an Executor or Guardian. This increase the time and costs involved for them in what will already be a difficult time. By naming these people in your Will, these appointments are automatic.
The following is a non-exhaustive list of some of the many things our clients will often put into their Wills
- Appointing an Executor
- Appointing alternate Executors
- Appointing a Guardian
- Dividing Property
- Providing Comprehensive lists for dividing property if people predecease you
- Putting Property "in Trust" for young people
- Donating to Charity
- Setting up a Scholarship
- Authority or Restrictions on your Executor's powers
- Body, Tissue, or Organ Donation
- Funeral and Memorial Directions
A Will is not strictly necessary for many people. Young people without families and who have little money or assets will not see much benefit from drafting a Will.
We recommend getting a Will done if any one of these conditions are met:
- You have Children
- You own a house in your name alone
- You own a Corporation
- You have assets, other than your home, worth over $20,000 in total
If you have minor children, appointing a Guardian for your children is extremely important. If you name a Guardian in your Will, then that person will automatically receive the rights you had as a parent.
If both parents of a child die without appointing a Guardian, then it will be left to their families to apply to the courts to appoint a Guardian for the children. This takes times, effort, and can cost a fair amount of money. Even worse, if no one is willing to go through this process, then the Province of Alberta will become the child's Guardian, and they will enter the foster system.
For these reasons, we strongly encourage new parents to get Wills.
If you are the sole owner on title to your house, then it will be absolutely necessary to appoint an Executor to get Grant of Probate before the house can be transferred or sold. Naming an Executor in your Will makes his or her appointment automatic. Otherwise, they will first need to apply to the court before applying for Probate.
If you own your home "jointly" with another person, then that person will receive your share in the property automatically when you die.
If you own a Corporation, your shares are property that forms part of your estate. As such, they will be divided as you direct in your Will.
If you own your business with other partners, it is extremely important that you control the ownership of your shares. Without a Will, unexpected people may inherit your shareholdings, and accidentally become a part of your business. If you are in a business with other partners, we recommend that you deal with your Corporate Shares in a Will, and put a Unanimous Shareholder's Agreement in place for your Corporation - both to ensure no one "accidentally" becomes a part of your business.
If a person has a very small estate, it is possible to avoid obtaining a Grant of Probate. A bank, for instance, may be willing to release money to a person's family if they show the bank a Death Certificate - provided the amounts are small. For most banks, this amount will need be less than $20,000.
If you have more than $20,000, a bank will insist on seeing a Grant of Probate to ensure that the proper people are receiving your money.
If you have a Will, banks will usually allow the release of smaller amounts of money to your named Executor to handle things like Funeral costs and other expenses. It is also much easier for your executor to obtain a Grant of Probate to release the whole amount.