Are you a high net worth individual with a complex asset profile? While some individuals may be able to get away with having a simple estate plan or will, you can’t: not if you want to make sure your wishes are properly honored after your death. Your legacy depends on getting your will and estate plan right.
Some people who might need legal help with their wills include people with step-children they want to provide for, business owners, people who own intellectual property, people who want to give some portion of their assets to charity, people who hold assets in common with others, and people who want to protect their assets from malicious family members.
If any of the above describes you, then it may be time to consult with an estate planning lawyer. Thinking about death is never pleasant, but it’s a vital part of the financial planning process that should not be ignored.
What happens when you die without a will in Edmonton, AB?
The term for dying without a will is “dying intestate.” This is also the term for someone who dies with an invalid will or who dies with a will that doesn’t accurately reflect the state of their assets.
When this happens, the courts default to the Wills and Succession Act of Alberta. This complex act governs who can inherit property in certain circumstances. The first thing that happens is the court appoints an administrator for the estate. A family member may apply to become the administrator, or the court may appoint a trustee.
If you have a spouse or common law spouse with children in common then the estate will go to your spouse or interdependent partner. If you have children from a previous marriage your current spouse will receive 50% of the estate and your children will receive the rest. At times grandchildren may be eligible to receive a portion of your estate if your children have not survived you.
If you have no spouse or children, the estate goes to your relatives in the following order: parents, siblings, nieces and nephews, and other next-of-kin. If no blood relatives can be found then the estate can go to the government.
This will happen regardless of the needs of your family members, your relationships with them, or your lack thereof. This is one reason why it’s important to avoid dying intestate. The other is the inconvenience and expense that dying without a will can cause. In other words, it is not an ideal situation.
Can I just write a will myself?
It is possible to write a will yourself. A will must be in writing, and signed by two witnesses. If you are active duty military you can have an unwitnessed will.
A good will cancels or revokes any previous wills, appoints someone to administer your will, names beneficiaries and gifts, names beneficiaries for anything that remains, and names a guardian for any minor children. On the surface it seems simple. You can even hand write your will or use a software program if you are so inclined. At its most basic level, a will written this way can oftentimes be perfectly valid.
Yet if the language of the will is vague it can be challenged. If you accidentally create conditions that can’t be carried out on your behalf then the will can be invalidated. If your assets are complex you may miss vital issues while attempting to draft up your will. Writing a will yourself can work if you have very few assets. If there are complications it’s better to involve a lawyer.
It is especially important to involve an estate planning lawyer if:
- You’ve been married multiple times.
- You own one or more businesses; estate planning and business succession planning go hand-in-hand.
- You own investment properties or income-bearing real estate of any kind.
- You have a disabled family member you want to provide for.
- You have minor children you want to provide for.
- You have step-children you have not formally adopted, but wish to provide for.
- You have grandchildren you want to provide for.
- You have relatives who you want to ensure do not touch your assets.
- You have large investment accounts or retirement accounts.
- You want to leave a portion of your estate to charity.
- You’re divorced, especially if the divorce was recent.
- You own intellectual property, especially property that actively pays royalties.
- You own more than $300,000 in assets.
If you have a simple life you can sometimes get away with a simple will. If you don’t, then you need to involve a lawyer in your estate planning process. Otherwise you may miss vital elements of your estate plan and create unintended consequences for your loved ones when you die. It’s a lawyer’s job to understand which legal instruments will best help you allocate your legacy in a way that helps you meet your goals.
What should you bring to an estate planning appointment?
When you go to an estate planning appointment you’ll want to bring all the documents your lawyer will need to get a full picture of your assets and liabilities. This includes:
- Bank statements for all accounts: checking, savings, money market accounts, CDs, and investment accounts.
- Copies of business agreements.
- Profit and loss statements for your business or businesses.
- Information about any intellectual property you may own.
- Tax returns.
- Insurance policies.
- Real estate deeds.
- Titles for cars, trucks, boats, rvs, and other vehicles.
- Information about paintings, jewelry, antiques, coins, or other collectables you may own.
- Statements for all debts you currently carry (all types).
- Birth certificates and adoption papers for all minor children.
In addition, you need to bring contact information for your chosen administrator, as well as the guardian you’ve chosen for your children. To make it easier for all of your beneficiaries to be found and gifted with your assets, you’ll want to bring contact information, including their names, addresses, phone numbers, dates of birth, and social insurance numbers if you happen to know them.
Finally, you should be able to discuss your goals with your lawyer. Know what’s important to you and have some idea of what you want to do with your assets when you get there.
What should I never write into my will?
There are a few things that should not be in a will.
First, you should avoid conditional gifts. They’re the stuff of Hallmark films, but in reality they don’t hold up in court and can’t be enforced. You can’t insist your grandchild gets married before receiving their share of the inheritance. If you want to have a say in how certain funds are used, you’ll generally want to have your lawyer set up a trust fund, which can come with certain conditions.
Next, you should make sure you don’t create confusions with property that might pass outside of your will. For example, if you are the joint owner of a piece of property you can’t just give that property to someone else. Jointly owned property will generally pass straight to your co-owner upon your death.
What is the difference between a will and an estate plan?
A will is just one component of an estate plan. An estate plan can employ several other legal vehicles to ensure your wishes are honored after your death. Good estate planning also puts other documents into place, such as a medical power of lawyer against a day when you might not be able to make decisions for yourself.
Estate planning also can make use of life insurance policies, property ownership, and trusts to ensure all of your assets get where they’re supposed to go. If you have a business, it may also include a buy/sell agreement that triggers on the day of your death. Each part of the estate plan should work seamlessly together to ensure your assets are distributed properly.
Proper estate planning can help reduce or eliminate time certain assets remain locked up in probate, can make funds available for the care of minor children, and can ensure that your business survives after you’re gone. One role an estate planning lawyer plays in this process is to help you think of issues that you might not have thought of before, as well as ways to address those issues.
Who can challenge a will in Alberta?
Not everyone can challenge a will, and there are a limited number of reasons why a challenge might be valid. In Alberta, spouses or common law partners may challenge a will, as may adult children. Someone who also has a financial interest in the estate and can prove that interest was included in a previous will can also make a challenge. Challenges may also be made by The Public Trustee, lawyers under an enduring power of lawyer, and trustees of the represented adults.
Being left out of a will is not generally grounds for a challenge, even if you had a verbal promise that you would be included in the will. Wills also may not be contested on the grounds that they are “unfair.”
A will may be contested if a dependent family member does not receive adequate support from your estate. If they depend on you before your death they will depend on you, at least for a time, after your death, and provisions should be made for them.
A will may also be contested if the challenger can prove that you did not have the mental capacity to put a will together. This means the will-maker was free of mental disorders that might impact their ability to fully understand what they were doing when they put the will together. It also means the will-maker did not make any changes to the will under duress. There are also times when a challenger may seek to prove that the will itself was fraudulent, or forged.
Finally, the will may be challenged if the terms of the will are impossible to carry out, or are so unclear as to be impossible to carry out. At that point the will is made invalid and it is just as if you had died without one. This is also true if the will is improperly executed, i.e., it was not signed in the presence of witnesses.
If you want to spare your loved ones from a situation that might lead to estate litigation then working with an estate planning lawyer is the best way to do so. This ensures that your will is written correctly and that the terms of the will is air-tight. It also becomes harder to prove that you weren’t competent to write or make changes to your will, as theoretically legal counsel would have advised you against taking any steps that weren’t in the interests of your estate planning goals.
Why choose a Merchant Law lawyer as your estate planning lawyer?
When you choose a Merchant Law lawyer you’re choosing to work with a law firm that offers decades of experience. Most of our lawyers have been with us for 20 or 30 years. Many of them have a background in other types of law which can help with estate planning, such as business law, real estate law, and civil litigation.
Our lawyers are responsive, kind, and attuned to your needs. We’re excited about sitting down with you, hearing your goals, and helping you achieve your aims.
To get started, gather your documents and call (780) 474-7777 to set an appointment today. We’re here to help you.
We have offices in Airdrie, Calgary Bowness, Calgary, Cochrane, Red Deer, and Edmonton, but we serve the entire province. We offer secure remote appointments for your security and convenience. If you’re an Alberta resident we can absolutely help you meet your estate planning needs. Contact us today to get started.