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Things to Consider when Making a Will
The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic discusses some things to consider when making a will. A will is a legal document that appoints someone, called a Personal Representative (PR) (also known as an Executor) to administer your estate (your assets and debts).
When naming a Personal Representative consider their age – are they likely to be young enough to take on the responsibility of acting if they are older than you? Do they have good organizational and communication skills? You will also want to name an Alternate Personal Representative. An alternate Personal Representative should also be appointed in case the first person you chose is unable or unwilling to act. It is best to appoint an Alberta resident because an out-of-province executor may be required to post a bond or security with the Court to administer your estate. If there is no suitable person available, you can name a trust company as your Personal Representative.
In planning your will, make a list all of your assets and estimate the value of your property. Consider whether the value will increase or decrease over time because your property is considered to transfer on the date of your death. For example, if you leave your new luxury car to one child and an investment to another child, the value of those assets may have changed drastically at the time of your death. Your children would receive different amounts when you may have wanted to gift each child equally in your total estate. You may want to leave them a certain amount of money rather than specifying what major assets they will receive. You may also want to specify who gets which antique or family heirloom instead of leaving it for the beneficiaries to decide. Residue is the term used for all of your assets that are not given as specific gifts; those assets remaining are sold and the cash becomes residue. For example, If you are wanting to give your estate equally to your children, you could provide in your will that “the residue of my estate shall be divided and distributed equally among my children”
Alternate beneficiaries should also be named in your will in case a beneficiary dies before you. If you do not name an alternate beneficiary, the gift to that beneficiary will return to the estate (as residue) unless you name the spouse and children of the beneficiary take that gift. Specify an alternative beneficiary to avoid a gift going to unintended beneficiaries. For example, you may want to say, “I give my cottage to my brother, John Doe, but if he does not survive me, then to my sister, Mary Doe”. If you do not name an alternate beneficiary, the asset would become residue, when you would have preferred Mary to have it.
A guardian should be appointed in your will to care for your minor children. Discuss the appointment with the guardian to make sure he or she agrees to act as guardian of your children.
Make adequate provisions for all of your dependents in your will, otherwise they can make a claim against your estate under the Wills and Succession Act or the Family Property Act The Court can alter your will to provide financial support to your dependents if required. Under the Wills and Succession Act, a dependent includes:
- Your legally married spouse;
- Any child or adopted child under the age of 18 years; and
- Any adult child or adopted child who cannot earn a living because of mental or physical disability.
- Your “Adult Interdependent Partner” as defined by the Adult Interdependent Relationships Act.
Under the Adult Interdependent Relationships Act, two people can become Adult Interdependent Partners where:
(a) They have lived in a relationship of interdependence:
(i) for a continuous period of not less than 3 years, or
(ii) of some permanence, if there is a child of the relationship by birth or adoption, or
(b) They have entered into an Adult Interdependent Partner Agreement as set out in section 7 of the Act.
You are not required to provide reasons for not leaving property to certain family members or dependents. However, it may assist the Court in deciding whether it should change the distribution of your property stated in your will. For example, you may have already given that person generous gifts during your lifetime and you and your spouse have agreed not to leave any more property to that person in your wills.
Some property cannot be disposed of by your will. For example, if you own land or your home in title as a joint tenant with another person, that property transfers automatically to the other joint tenant when one person dies. This is different than the title of property or land held as tenants-in-common. This type of title does not have a right of survivorship to the other owner and you may leave your share in the property to anyone you choose. A search at the Land Titles Office will tell you how title of jointly owned property is registered.
The Dower Act provides for a surviving spouse to continue to live in the family home until their death, if they wish. It does not matter how the title is registered. Title may be registered in the sole name of the deceased spouse or in the name of both the spouses. If you want your spouse to give up Dower Rights in return for some other benefit under the will, you should both speak to a lawyer to make sure the agreement is valid and enforceable in law.
Always make a new will when there is a major change of circumstances in your life. If you get married, that marriage will not automatically revoke your will. Your will is not revoked automatically if you separate or divorce, but there are provisions in the Wills and Succession Act that consider gifts when parties are living separate and apart. There are formal requirements for making a will and you will want to ensure your will meets those requirements to be a valid will. Minor amendments or changes to your will can be made by a codicil (this means an addition or supplement that explains, modifies or revoke a will or part of one). This is made in addition to a will. The codicil must be signed and witnessed in the same way that you originally signed the will for it to be valid.