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What about wills?
What is a will?
Wills are legal documents that set out what people wish to see happen with their possessions and property after they die. The person making the will is the testator and, if female, is sometimes called the testatrix. People can change their wills at any time. A new will may replace the old will.
What happens if you die without a valid will?
In Alberta, if you die without a valid will, the Intestate Succession Act applies to the property you leave behind. The Act sets out how your property is to be distributed to the survivors. Rules determine how much can be given to your surviving spouse or adult interdependent partner and to any surviving children. If there is no surviving spouse or adult interdependent partner and no surviving child, then the property goes, in order, to surviving parents, siblings, nephews or nieces, and, if necessary, to the remaining next of kin. Dying without a will, if your estate is valued at over $3,000, means that someone must apply to the court to be named as an administrator. Specific rules rank who can apply to administer your property, starting with your surviving spouse or adult independent partner.
What is an estate?
An estate is the possessions and other property that the deceased leaves behind at death. In Alberta, estates can include many types of property – for example, furniture, cars, houses, pensions, and death benefits. Pets are property and can form part of an estate. In Alberta law, the deceased’s taxes and valid debts MUST be paid from the estate.
Must property be fully paid for to be part of the estate?
No. Alberta law allows living people to have interests in property they do not completely own. Depending on the circumstances, those interests can continue after death and form part of the estate.
What is an executor?
A will may name one or more people to be an administrator, that is, a person who carries out the will maker’s wishes. In Alberta, an administrator can also be called a personal representative, but a more common name is executor. A female executor can also be called an executrix. The executor’s role is to gather the estate assets, to pay all valid outstanding debts of the estate and to distribute the estate, according to the will.
What is a holographic will?
It is a type of will that is valid only in Alberta and some other provinces. A holographic will must be completely in the maker’s handwriting. Witnesses are not required. Typically, a holographic will can be done in less time than a conventional will and is, therefore, useful in emergencies or where there is not much time. In contrast, a conventional will has more legal requirements; in Alberta, these requirements include the signatures of the will’s maker and of two witnesses.
What is a codicil to a will?
A codicil is merely an addition or small change to an existing will – it is not a new will and does not cancel the existing will. If it is valid, a codicil is part of the will. To be valid, a codicil must meet the same legal requirements as the will. For example, a codicil to a holograph will must be completely handwritten by the maker, while a codicil to a conventional will must meet the same legal requirements as the will – for example, signed by the maker and two witnesses.
What are mirror wills or mutual wills?
Mirror or mutual wills are made by two people who wish to leave everything to each other. That is, each person makes a will. The two wills have the same terms: that is, each will maker is the beneficiary of the other’s estate (property and possessions) or names the same beneficiaries in (e.g., children or parents) as the other will maker does.
Is a video- or voice recording of your wishes a valid will?
No. Video or voice-recorded wills are not valid in any province in Canada, including Alberta. Alberta law requires that all wills be in writing.
What is a will kit? Is it OK to use one in Alberta?
Will kits are printed wills forms sold, for example, by stationary or office-supply stores. Will kits can be used in Alberta. Typically, kits are cheap to buy and take less time to complete than does a will from a lawyer. Kit wills, however, must meet the same strict rules as other wills. If you do not meet all the applicable requirements, then your kit will may be partially or completely invalid. For example, beneficiaries must not be witnesses because they shall lose any gift under your will. Another example: Your two witnesses must be present at the same time to see you sign your kit will. If they are not, then your whole will may be invalid. Another problem may arise: if you have written down your wishes in a confusing way, then a court may have to interpret the will and, as result, may have your property distributed in ways that you do not want
If I type out a will and sign it, do I need witnesses to sign also?
Conventional (non-holographic) wills, in Alberta, require at least two witnesses. A beneficiary (e.g., spouse, child, adult independent partner) who is named in the will should not also witness the maker’s signature. Any gift (benefit) to a witness is void: that is, a witness will not receive property or possessions under the will.
What happens to the property and possessions left to a beneficiary if the beneficiary dies before the maker of the will?
If the will was never updated and does not state a different intention, then the gift may pass to the deceased beneficiary’s spouse, children or adult independent partner in the same manner as if the beneficiary died intestate - that is, as if beneficiary died without a will.
Do I need to make a new will when I get married or divorced?
In Alberta, a marriage cancels an existing will unless the will clearly states that it is made in “contemplation of marriage” and names your future spouse. Divorce does not revoke a valid old will. Therefore, a new will may be needed if you divorce or separate.
My will leaves property to others (e.g., family, friends) – before I die, can I still sell or mortgage my property or possessions or give them to someone else?
Basically, you can dispose of your property any way you wish before you die. This is true even for property you name in will. If you die and no longer have that property, then it does not exist for purposes of leaving it to others under your will.
How old do you have to be to make a will?
Each province has their own rules; in Alberta the legal age to make a will is at least 18. There are limited exceptions. A person under 18 can make a valid will, if married or if in the Canadian Armed Forces.
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What is involved in probating a will?
What is Probate?
Probate is a legal procedure where the court determines the will’s validity and confirms the executor’s appointment. In Alberta, the court is the Surrogate Court. An executor can apply to the Surrogate Court to probate a will.
How much does it cost to probate a will?
In Alberta, there is a range of court fees charged for probate - the larger the estate, the higher the fee. For example, the minimum fee is $25, charged for estates valued at $10,000 or less, while the maximum fee is $400, charged for estates valued over $250,000.
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What is the law around "living wills"?
What is a “living will”?
In Alberta, the legal term is a personal directive. It is a legal document, and you must be at least 18 to make one in Alberta. A personal directive lets you choose another person to be your agent. Your agent acts on your behalf and makes decisions for you at a time when you are unable to do so. Your personal directive has your written instructions on non-financial decisions regarding your future. In this way, you remain in control of important future matters, such as health care and where you live. A personal directive lets your family and others know your wishes are and what to do if you can no longer make decisions for yourself.
What if I do not make a personal directive?
If you lose capacity to make your own decisions and do not have a personal directive, then the court may appoint a guardian. In that case, the guardian will handle your non-financial matters. In Alberta, no one, not even a spouse or close relative, can make non-financial decisions for you, unless your wishes have been written down in a personal directive. For example, speaking to others about your wishes is not enough to give them the legal right to handle your non-financial affairs once you cannot handle them yourself.
How do I make a personal directive?
There is no one specific form. People have different wishes and want various degrees of control over their own futures. Alberta Services provides information and assistance in the booklet “Understanding Personal Directives” and runs workshops through the Office of the Public Guardian.
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What are "Powers of Attorney"?
What is a Power of Attorney?
It is a written legal document, and you must be at least 18 to make one in Alberta. While a personal directive appoints someone else to look after your non-financial matters (such as health), a Power of Attorney appoints someone to look after your financial affairs. You are the donor and you give your authority (power) to another person (attorney) to deal with your property. An ordinary power of attorney stops if the donor becomes mentally disabled.
What is an Enduring Power of Attorney?
It is a Power of Attorney that allows the powers given to the attorney to continue after the donor becomes mentally disabled. Enduring Powers of Attorney come in two types: one starts immediately, while the other only starts when the donor becomes mentally disabled or when some other specific event (such as infirmity) occurs. This last type is often called a Springing Power of Attorney.
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Where does insurance policy money go?
Who gets my insurance-policy money?
You are the policy maker, and the insurance money goes to whoever you say in the policy. That is, the money will go to who your policy names as a beneficiary. Your policy can name your estate as well as specific people as your beneficiaries. For example, your policy does not name your estate but does name one or more people as your beneficiaries; then, your insurance money may go to one or more of those named people. If, however, a beneficiary dies before, or at the same time you, the policy maker, then the rules outlined in the Alberta Insurance Act apply.
When does my insurance-policy money go to my estate?
Money under your insurance policy is paid to your estate if your insurance policy names your estate as a beneficiary.
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Where can I find more information?
Sources for further information include:
The Surrogate Court in Alberta: The staff of the Surrogate Court and the information they provide may answer some of your questions. The staff do not give legal advice but know the documents and processes involved with Wills and Estates in Alberta. To reach the Surrogate Court in your area, call Service Alberta at 310-0000, toll-free, and ask for the office of the Surrogate Court in your area. The staff may have you visit their office.
Legal Information Centres (LinC): The Centres help people without lawyers to:
- learn about general court procedures,
- locate and fill out court forms,
- learn about options for getting legal advice,
- find out about alternatives to court and get legal information
LinC staff can:
- give you information about criminal law and about civil law, including wills and estates,
- tell you which court forms to use,
- tell you the steps to take in making legal applications,
- refer you to legal and other resources in the community
LinC staff do not give legal advice and do not help you choose how to solve your legal problem or help you make legal applications in court. LinC staff do not fill in court forms for you. The Centres now operate in the Edmonton, Red Deer, and Grande Prairie courthouses, with a location expected in Calgary in 2008.
Alberta laws and regulations around wills and estates, including related insurance issues: The internet is often a good source: e.g., www.canlii.org. You can also visit public libraries and college and university libraries. The Law Society of Alberta also runs libraries in various court houses across Alberta; the website is: http://www.lawlibrary.ab.ca/ , .You can buy Alberta laws, such as the Family Law Act, from the Queen’s Printer for Alberta. It publishes Alberta’s laws, plus many other law-related materials, and also provides on-line versions of such products at www.qp.gov.ab.ca/catalogue. To call the Queen’s Printer directly in Edmonton, dial 780-427-4952; otherwise, call Service Alberta at 310-0000, toll-free, and ask for the Queen’s Printer. Your local bookstore or library may carry Queen’s Printer products. Check your local telephone book.
Alberta Law Line: A program of Alberta Legal Aid, Alberta Law Line provides free legal information to callers and can provide free legal advice by telephone to callers who qualify for advice. To see the qualifications for free legal advice, visit www.lawline.legalaid.ab.ca. To reach the Law Line, call 780-644-7777 in Edmonton and 1-866-845-3425, toll-free, elsewhere in Alberta.
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