Wills & Estates

>>>>Wills & Estates
Wills & Estates2018-11-22T22:57:15+00:00

The lawyers with Huckvale LLP are dedicated to working closely with clients to design estate plans that meet their unique needs and circumstances.

We will assure that our clients meet their needs in arranging for an orderly transfer of property or assets from one individual to another, or from one generation to the next, drawing on skills in business law and a trusted network of accountants and financial advisors.

In addition to dealing with the more complex estate planning issues, including business succession planning and tax minimization, we can assist Estate Trustees (Executors) with all aspects of estate administration and represent individuals in litigation and dispute resolution relating to estates and Powers of Attorney.

Our estate planning service areas include:

  • Wills
  • Power of Attorney for Property
  • Power of Attorney for Personal Care
  • Trusts for children, grandchildren and other young beneficiaries
  • Life trusts for individuals
  • Protective life trusts for individuals with special needs
  • Life insurance, RRSP and RRIF beneficiary issues
  • Joint property issues
  • RESP issues
  • Estate Administration Tax (Probate Fees) minimization

Contact our

Wills & Estates Law Team

Wills & Estates FAQ

The dictionary defines a will as the legal statement of a person’s last wishes as to the disposition of his or her property after death. When you make a will, you are known as the testator (or sometimes testatrix if female). The person you put in charge of carrying out your wishes as expressed in the will is called an executor/executrix. In Alberta, and in every province in Canada, a will must be in writing.

A will does not take effect until you die. If you specify in your will that you leave certain property to someone — for example a diamond bracelet to your sister or a lake lot to your brother — you may still dispose of that property during your lifetime. You may sell it, mortgage it, or deal with it in any way you choose. If that item is no longer in your possession at the time of your death, then the will is interpreted as if that property did not exist. Of course, you may also change your will at any time.

There are three different types of wills: ones drawn up by a lawyer, ones that you can complete yourself by filling in forms that you can obtain at any stationary store, and ones that you handwrite completely by yourself. Ones that you handwrite are holograph wills. They are legal in Alberta but they are not allowed in every province in Canada, so you should check if they are legally acceptable where you live.

There are advantages to having a lawyer draw up your will. He or she has a lot of expertise that you can call upon in matters like tax consequences, trusts, making suitable arrangements for young children, and many other matters. You must word your Will very carefully and precisely to make sure that exactly what you want happens. It is particularly important for some people to consult a lawyer about making a will: people with large and complex estates; people who are separated or getting divorces, so that their spouse doesn’t inherit the estate; older or ill people who feel that they are being pressured or influenced by others; and people who are thinking about getting married.

It is an oddity of the law of wills that getting married invalidates a will whereas getting a divorce does not. If you marry, any will you made before your marriage will be invalid unless you expressly state that the will was made in contemplation of marriage. Therefore, you should make a will that specifically mentions the person you are going to marry or else you should make a new will immediately after your marriage. On the other hand, a divorce does not invalidate your will. If you make a will while you are married that leaves your entire estate to your spouse, then he or she will inherit after you are divorced unless you make a new will.

This sort of will is valid in Alberta. They offer the advantages of privacy, since no one but you needs to know the contents. They are quickly done, and they are cheap. The disadvantage is that they are still subject to the same strict conditions for witnessing as a will done by a lawyer. Alberta’s Wills Act sets out very specific conditions for the witnessing of wills; for example, both witnesses must see you and the other witness sign the will at the same time. If all three persons are not present at the same time and do not watch each other sign the will, then the will may be held to be invalid. In addition, a beneficiary (a person who gets something under the terms of the will) must not be a witness to the will. If he or she is, then while the whole will itself may not be invalid, the gift to that person will be. For example, if you leave your estate to your wife and your wife is one of the witnesses to your will, then the gift to her will be invalid. If you decide to make your own will using a store-bought form, you should read the instructions very carefully, be sure that you understand them, and follow them exactly. If you have any doubts, you should consult a lawyer.

A holograph will is a will that is written entirely in your own handwriting. These wills are valid in Alberta. The advantages to holograph wills are that they do not require any witnesses and they can be prepared quickly and privately. There are some very interesting examples of holograph wills; the most famous in Canada being the farmer who was trapped under his tractor when it rolled over on top of him and who managed before he died to scratch on the fender that he left his estate to his wife! Certainly, holograph wills are handy in an emergency, and some people will write them before leaving on a trip or on some other occasion when time is short. However, it is very easy to make a mistake or write in a way to leave confusion or ambiguity, and so holograph wills are not recommended.

It is a good idea for everyone to have a will. Good health is no guarantee of long life since an accident could claim any of us at any time. People often have more assets than they think since they might not be thinking about life insurance and pension benefits that could be payable to their estates. Even credit card companies will often have packages that include accidental death benefits if airline tickets are booked using one of their cards. Anyone with young children should make a will so that a guardian can be named for the children, and your wishes about their financial needs and their upbringing can be addressed. Even if you do not have many assets, you will want to be sure that the correct people receive those assets.

If you die without a will, you are said to die “intestate”. Two immediate problems arise when this happens: first, as there is no executor appointed, there is no one to take charge of the handling of your estate. Secondly, there is no written record of what you would like done with your estate. If you die without a will in Alberta, then the Alberta Intestate Succession Act comes into effect.

First, the Act provides for the appointment of an “administrator” to handle the gathering together and distribution of the estate. This must be done after someone applies to take on the job and the Court issues an order appointing him or her, so there may be some initial delay.

Second, the Act sets out a schedule of blood relatives who may inherit the estate. For example, if the value of the estate is less than $40,000.00 and there is a spouse and children, then the spouse inherits the whole estate. If it is worth more than $40,000.00 and there are a spouse and children, then the spouse gets the first $40,000.00 and splits the rest with the children, in shares that depend on the number of children. If there is no spouse and no children, then the estate will go to other relatives in an order set out in the Act.

If there is no spouse and no blood relatives, then another Alberta Statute comes into play: The Ultimate Heirs Act. This Act says that if there is no spouse or blood relatives of the deceased then the estate will pass to the provincial government.

The executor has three main jobs:
1. Gather together the assets of the estate;
2. Pay all the valid outstanding debts of the estate;
3. Distribute the estate in accordance with the terms of the will.