WHAT IS A WILL?
A Will is the legal statement of a person’s last wishes about how to divide his or her property after death. The property that is distributed following the instructions in a will is known as the estate.
WHAT IS AN ESTATE?
The property that you own at the time of your death, including land and possessions, which is distributed following the instructions in your Will is known as your Estate. The property in your Estate is first used to pay debts and taxes. It is then distributed in accordance with the instructions in your will.
WHAT IS A PERSONAL REPRESENTATIVE?
A personal representative (formerly known as an executor) is the person named in a will to carry out the directions contained in the will. The personal representative is responsible for settling the person’s affairs after death. The person’s estate passes temporarily to the personal representative.
Why do I need a Will? What does it do? What if I do not have one?
Wills set out how your assets are to be divided upon your death. They can further provide direction for businesses, guardianship of minor children, special needs dependents, funeral arrangements and management of death related expenses, among other things.
If you do not have a Will in place, the distribution of assets, management of your estate and any guardianship will be left to the courts to decide based on Alberta Law through a lengthy and often stressful process called Probate.
Through a Will you can also name your personal representative (formerly known as an Executor). This is the person whom you trust to have the authority to ensure that your wishes are carried out and to ensure that all your affairs are in order.
DO I HAVE TO MAKE A WILL?
No, a will is optional and voluntary. While it is extremely important to consider making one, you do not have to, and no one can make you sign one if you do not want to do so.
WHAT INFORMATION IS NEEDED FOR A WILL?
Our Lawyers will provide you with an easy to navigate, fillable Questionnaire that will guide you through all the required questions and let you know what information needs to be provided.
You will require at minimum the following information for anyone named in your Will (such as children, spouse, proposed guardians, and other beneficiaries):
You will also need to keep some form of record for amounts of all debts, including mortgages, car loans, student loans, business loans and credit card accounts.
You will need to provide a list of assets, including detailed information regarding the following:
Investments (stocks, bonds, mutual funds etc.)
Pension / Retirement Accounts
Life Insurance Policies
Ownership Interest in a Business
Cars, boats, planes and any other vehicles
Any valuable personal property
You should be sure to provide information regarding any existing Wills, Trusts, Divorce Judgements, Custody Agreements, Prenuptial Agreements and any other legal documents that may affect your Will.
Because of the extent of information provided in your Will, you should be sure to revisit your Will periodically to update it upon certain major life changes to ensure that it is still an accurate reflection of your wishes.
WHEN DO I HAVE TO MAKE A WILL?
There are certainly advantages to having a lawyer prepare your will. He or she has a lot of expertise that you can call upon to deal with matters like tax consequences, international issues, trusts, making suitable arrangements for young children among many other issues.
Wills must be worded very carefully and precisely to make sure that exactly what you want happens. Lawyers are skilled in the careful and precise use of language. It is important to note that making a verbal recording of your wishes (such as video, voice recording, CD or MP3) is not enough and will not be considered a valid will.
WHAT IS A CODICIL?
A Codicil is a legal document that allows you to make additions or changes to the terms of your will. Once it is completed, it will become a part of your original will.
WHAT MENTAL CAPACITY DO I NEED TO MAKE A WILL AND WHO DECIDES IF I HAVE THAT CAPACITY?
Having the mental capacity to make a will means that you must:
Know that you are making a will and understand what a will is;
Know what property you own; and
Be aware of the people (such as a spouse and children) you would normally provide for.
In addition, you must know and approve of the contents of your will. If you were misled, whether by fraud or accident, or someone put undue influence on you, your will may later be found to be invalid.
This is another reason for meeting with a lawyer to discuss your will. This may provide proof that the will was made by your own free choice. Further, you should be alone with the lawyer when making your will. You should be comfortable and able to speak freely without concern of other parties.
WHO CAN BE A WITNESS TO MY WILL?
A witness must:
Be 18 years of age or older;
Cannot be a beneficiary under the will; and
Cannot be the spouse or the adult interdependent partner of someone who is a beneficiary under the will.
The witness does not need to read your will. All they must do is see you sign your name to the will, and then they will sign in front of you.
WHAT SHOULD I DO WITH MY WILL NOW THAT IT IS COMPLETE?
It depends on your situation. Many people choose to put their will in a safe place that their personal representative knows about and can be easily accessed (i.e. a safety deposit box at their bank). Others choose to leave it with a trusted third party such as their lawyer.