Estate planning is one of the most important steps you can take in the financial planning process. A proper will and estate plan ensures that all your loved ones receive the assets you’ve worked so hard for after you die, and that they do so according to your wishes. It allows you to meet individual needs, pass on complex assets like businesses, and even create vehicles for avoiding the probate process.
Without a solid estate plan, your loved ones could face delays and expenses that make life difficult for them after your death. While it’s never pleasant to plan for your own death, it’s one of the most loving and generous acts you can ever do.
If you haven’t made your estate plan yet, reach out to the lawyers at Merchant Law. Our experienced estate planning lawyers are here to help you meet your goals for the future.
Who needs the help of an estate planning lawyer?
If your life is very simple you might be able to put your will together yourself. There’s nothing illegal about writing a will without a lawyer, as long as it’s in the proper format and witnessed according to Alberta law. Unfortunately, there are many ways you might make mistakes with legal language which could create confusion or invalidate your will.
Most people’s lives aren’t simple in the slightest. There are a number of circumstances that make it highly advisable for you to get a lawyer’s help before putting your will together.
For example, if you’ve been married more than once then a will can protect assets for the children of your earlier marriages, or can help you provide for step-children, or ensures the spouse you’re married to today doesn’t have trouble accessing an inheritance. Multiple marriages can truly complicate matters after your death if you haven’t properly accounted for them in your will or estate plan.
If you are an entrepreneur, business owner, or have intellectual property that pays you royalties or passive income then, again, a will is the best way to ensure your property goes exactly where you want it to go.
Want to provide for grand-children, give money to a disabled brother, leave a portion of your money to charity? An estate planning lawyer can help you protect these gifts from challenges.
What happens when you die without a will in Cochrane, AB?
Dying without a will in Alberta is called dying “intestate.” When this happens the courts use the Wills and Succession Act of Alberta to distribute your assets. The courts will appoint an administrator for your estate who will make sure your assets get to the right place. A member of your family may apply for the role. The court may also appoint a professional trustee.
Where your assets go depend on what family members you have. If you have a spouse or interdependent partner with children in common then the entire estate goes to your spouse or partner. If you have children from a previous marriage then your current spouse receives 50% of the estate and your natural born and adopted children receive the rest. If your children have not survived you the estate may pass to grandchildren.
If all of these relatives are exhausted the court will seek other heirs: parents, siblings, nieces, nephews, and other next-of-kin. Your assets only go to the government if no next-of-kin can be found, but this method does mean your estate may go to someone you barely know, someone you don’t like, or someone who doesn’t really need the assets.
How should you prepare for your estate planning appointment?
If you have decided to take advantage of a lawyer’s estate planning services then it’s vital for you to have certain conversations and gather certain documents before the appointment begins.
The first thing you’re going to want to do is have some conversations. You’ll need an administrator for your will. Who will you choose? Are they willing to take on the role? If they’re not, you’ll want to find another: the court can’t force anyone to administer your will on your behalf.
If you have minor children and you are planning against a day when your spouse might not be there to help take care of them, or are raising them on your own, then you’re going to want to find a guardian for them. Again, you’ll need that guardian’s permission to name them because they can refuse after your death.
- Tax returns
- Bank statements for all account types
- Stock and bond certificates
- Lists of expensive assets like paintings, coin collections, antiques
- Business agreements and P&L statements
- Information on any intellectual property in your possession
- Real estate deeds
- Titles for cars, trucks, RVs, or boats
- Insurance policies
- A copy of your latest bill for all debt types
You’ll want to know exactly who you want your beneficiaries to be as well. Gather contact information for those people to make things easier on your administrator later and to ensure asset distribution isn’t delayed. It’s a good idea to bring their name, address, phone number, DOB, and social insurance number if you happen to have it. If you want to give any money to charity be sure to bring the contact information for the charity as well.
Come into an appointment with at least some idea of the goals you’ll be pursuing. You don’t have to know exactly what you want to do, but you should be able to give your lawyer some sense of direction so that you can receive advice on how best to meet your objectives.
What is the difference between a will and an estate plan?
An estate plan is a unified plan for ensuring that your assets are used to support your goals after your death. This could mean taking care of your loved ones, supporting a charity, or ensuring that your business survives you. It is essentially a legal strategy that takes advantage of many different vehicles to meet your overall needs and goals.
A will is one component of an estate plan. The analogy is simple: it’s like a foundation for a house that you’re building. It’s one of the most important components of the estate plan, but it’s not the only component.
Other components could include succession planning for your business, insurance policies, setting up trust funds for your children, naming certain individuals as co-owners on assets that you’d like to pass outside of the estate, and more.
Is it possible to challenge a will in Alberta?
It is possible for certain individuals to challenge a will in Alberta. This is one very good reason why you want to work with a lawyer to put together an air-tight estate plan.
A spouse, a common law partner, or an adult child has standing to challenge a will under certain circumstances. Others who might have a financial interest in the estate may also have grounds to challenge the estate. A challenge may also be made by the Public Trustee, or your own lawyer.
What are acceptable grounds for challenging a will?
The most common grounds for challenging a will are the grounds that a dependent family member has not received adequate support from your estate. The law allows courts to adjust the will to ensure dependent family members aren’t suddenly left destitute as a result of what has been written into a will.
Family members may not challenge a will simply because they feel it is unfair. Nor may they challenge the will on the grounds that you made them some kind of a verbal promise that you did not honor in the will. Neither of these are valid grounds for a challenge.
Other grounds for a challenge have to do with making the attempt to determine whether or not your will is valid.
For example, the challenger may claim that the latest version of your will was written at a time when you did not have the mental capacity to understand what you were doing. In order to write a valid will, you must be free of mental disorders which can impact your own ability to understand your estate or decisions. This means it’s a good idea to do estate planning long before you could ever be accused of being senile. When you work with a lawyer, you also shield your estate from these sorts of challenges as your lawyer is absolutely of sound mind and body and would protect you from making any major mistakes to begin with.
There are also instances where a person may make changes to a will because they’ve been defrauded, intimidated, worn down by an insistent bad actor, or placed under some form of duress. If the challenger can prove any of these things happened to you then it may invalidate the latest version of your will.
Finally, a will may be challenged if the will is legally invalid, vague, unclear, or if the terms are simply impossible to carry out. For example, if a version of your will leaves a great deal of money to someone who has died ahead of you then it’s not going to be possible for your administrator to carry out your wishes.
What happens when someone successfully challenges a will in Cochrane, AB?
One of four things happens when someone challenges a will.
The first is that the courts will uphold the most recent version of the will. This is the idea scenario in most cases, and what you’re trying to achieve by working with an Alberta estate planning lawyer.
The second is that the courts will revert to an earlier version of your will. If you’ve been doing proper estate planning for a number of years then you might well have multiple versions. You should be reviewing your estate plan every three to five years.
The third is that the courts may choose to uphold most of your will but will modify some of it to allow for the support of your dependents or to remedy a problem.
Finally, if none of these remedies are available, the courts may also revert back to the Wills and Succession Act just as if you had died intestate. This is, of course, not an ideal situation most of the time.
Why choose a Merchant Law lawyer as your estate planning lawyer?
Our award-winning estate planning lawyers have decades of experience helping high net worth individuals, business owners, entrepreneurs, and innovators create the estate plans that meet their goals. We work closely with one another to ensure best results, and are responsive and caring. We can generally get your estate plan done within a week or so of starting, if not sooner, and are adept at coming up with creative solutions to the stickiest legal problems.
Many of our lawyers have backgrounds helpful to estate planning such as business law, real estate law, and civil litigation. This gives us the breadth of understanding to help navigate any complicates that may arise during the estate planning process.