For most of us, planning for what will happen when we pass away is something we would rather not think about.
However, there are some good reasons why taking care of your estate planning now is a good idea – one that can actually give you and your loved ones some reassurance and peace of mind.
The process doesn’t have to be painful, either. An experienced estate planning lawyer will know what matters need to be addressed, and can help you turn your mind to the relevant considerations.
Then they can walk you through the steps of putting in place an appropriate plan that takes care of your wishes and concerns.
Learn More → Considerations When Writing a Will in Alberta
What Documents Can an Estate Lawyer Prepare for Me?
The typical document that everyone associates with estate planning is a will. The primary purpose of a will is to ensure the orderly distribution of your assets after you pass away. In it, you will identify who your beneficiaries are (ie, who will receive your assets, such as property and investments), and what each one will receive.
If you have minor children, your will should also name someone to act as their guardian. You will need to name a personal representative, who will have the responsibility of carrying out the distribution laid out in your will. Your will only comes into effect after you die, and you are free to make changes to it at any time.
In addition to a will, it is also advisable to prepare two other documents: an enduring power of attorney, and a personal directive. Unlike the will, these documents may come into effect before you pass away, if something happens to you that renders you incapable of making decisions or looking after yourself.
ENDURING POWER OF ATTORNEY
Identifies the person or PERSONS THAT YOU EMPOWER to deal with your property and finances in the event that you become unable to do so. You can choose to have it take effect at any time (even before you lose capacity), or it can take effect only after you become incapable.
A personal directive names the person or PERSONS WHO WILL ACT AS YOUR AGENT(s) to make decisions about your medical or personal care, if you are unable to give directions yourself. This could include where you will live and how you will be cared for, as well as medical treatment decisions. Your personal directive only takes effect if you are found to lack capacity following a capacity assessment carried out by a doctor.
Why Prepare These Documents?
A will allows you to direct how your property and assets will be distributed, so that you can make sure people you care about are provided for. When drafted properly, it will provide a clear expression of your intentions, which reduces the likelihood of conflicts among your family members and other beneficiaries after you pass away.
If you die without a will, the Wills and Successions Act determines who inherits your property and in what proportions. The distribution scheme under the Act is generic, and may not reflect people or considerations that are important to you. Moreover, if there is no will and no other surviving guardian of your minor children, it will fall to the courts to determine who should become their new guardian.
Responsible Financial and Tax Planning
No matter how large or small your estate is, there are important considerations that can help ensure that your heirs receive the benefit of your assets, instead of having them lost to unnecessary taxes and fees or through mismanagement. You have worked hard over your life to accumulate what you have, and made careful decisions to protect your assets and avoid waste. Estate planning is simply a continuation of that strategy.
For example, by having a will, you can avoid having your loved ones incur legal costs and expenses in order to deal with distribution of property, guardianship of children or others in your care, or trusteeship over assets. Without a will, many of these matters are required to be decided by a court. Not only is this expensive, but the outcome is hard to predict.
In addition, there may be steps that you can take now, such as setting up trusts or joint tenancies, or making gifts of property, that will significantly reduce the tax impact of inheritances that you leave to your beneficiaries.
If you own a business and want to see it carried on as a going concern, you must make provision for this in your will, and specify who will inherit and take it over. Otherwise, the business may be treated simply as property to be sold off for value to be distributed to your beneficiaries. You might also want to set up a succession plan, to ensure that the business remains viable after you are gone.
Why Use an Estate Planning Lawyer?
Wills, personal directives, and powers of attorney can be drafted in Alberta without consulting a lawyer, and they are generally valid, provided that they respect certain legal requirements. Will kits or similar tools are also an option, particularly for people with limited assets and simple estates.
For most people, however, there will likely be reasons why it makes sense to consult an estate planning lawyer. In addition to ensuring that the document you draft will be valid and effective in carrying out your wishes, it may be advisable to consult a lawyer if your circumstances involve any of the following:
- You have a blended family;
- You own foreign assets;
- You are a business owner;
- You want to exclude a close family member from your will;
- You want to leave assets to a charity;
- You have heirs living in other jurisdictions;
- You want to set up a trust;
- You have significant assets;
- You have a dependent with disabilities or who requires ongoing care;
- You yourself have medical issues making it likely that you will require care or guardianship;
- You anticipate conflict among your beneficiaries.
If a beneficiary received money or property from the deceased while the will-maker was alive, it may be claimed that this was an “advance” to a share of the estate rather than a gift, unless it was specifically stated as such.
This may result in the beneficiary’s share of the estate being reduced or the beneficiary having to repay the finances.
As with most important decisions, informing yourself and getting good advice about your estate planning can make the process easier to navigate.
If you are thinking about preparing estate documents, consider starting with an initial consultation with one of our experienced estate planning lawyers.
We currently have three offices across Alberta — Edmonton, Calgary, and Red Deer. However, we serve the entire province of Alberta. We also have the infrastructure to work with any of our clients virtually — even the furthest regions of Alberta.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
WILLS and ESTATES LAWYER
Wilson McCutchan is a lawyer in the firm’s Calgary office. He advises and represents clients on a broad array of estate dispute and litigation matters.