Top 10 Frequently Asked Questions about Wills & Estates

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1. What is a Will?

A will is a legal document that allows an individual to determine and direct how their property will be distributed after their death, and to whom. A Will also sets out the guidelines as to who will care for any minor children at the time of the client’s death. Finally, a Will also directs who will be responsible for being your personal representative, also known as an Executor or Executrix, at the time of your death. This person will represent your estate and will ensure that your Will is properly administered as per your wishes.

2. What is an Executor/Executrix? What is a Testator?

A Testator is a person who has made a Will.

An Executor is a person or institution appointed by a Testator to carry out the terms of their will.

3. What types of Wills are there?

There are two types of wills:

Holograph Will: This style of Will is becoming less common, and involves the testator, or the person whom the Will is for, preparing the document in their own hand and signing it at the bottom.

Non-Holograph Will: This style of Will is becoming more predominantly common today, and involves a formal Will being prepared, and then signed and witnessed by the person whom the Will is for, along with two witnesses. All three signatories must be present at the time of the signing of the Will, and they must personally observe each other signing the document.

4. What happens if your Will is not valid?

If an individual passes on without a valid Will in place, their entire Estate or a portion thereof will be distributed according to the Wills and Succession Act (Alberta) (https://www.qp.alberta.ca/documents/Acts/W12P2.pdf), which may result in the Estate being divided amongst individuals or institutions that might otherwise not have been a named recipient in the Will. If appropriate beneficiaries can not be identified based on the Wills and Succession Act, then the Estate becomes allocated to the Provincial Government.

5. What is a Personal Directive, and what is an Enduring Power of Attorney? What are their benefits?

Personal Directive: A legal document wherein a person specifies what actions should be taken for their health in the event that they are no longer able to make decisions for themselves.

Enduring Power of Attorney: Occurs when an individual is authorized to act on someone else’s behalf in legal and financial matters. This authority continues should the person granting the authorization lose mental capacity.

The benefits of having either of these in place would be that the person granting the Directive of Power of Attorney are able to select someone whom they trust, and who likely has personal knowledge of the grantor’s wishes, to handle their affairs in the event that the grantor is no longer able to do so themselves. These legal documents also ensure that such decisions do not end up being allocated to the government or to a stranger.

6. Do you need a Lawyer to prepare your Will?

No, you do not have to have a lawyer to prepare your Will. However, using a lawyer will ensure that your documents are properly drafted and executed in accordance with the law.

7. How are Wills disputes resolved?

The best way to resolve an Estate dispute is to avoid it becoming an issue in the first place, through careful planning and attention. However, if a dispute does arise, a resolution can be pursued through the Surrogate Court. This can be a costly and time-consuming process though, so it is best to try to prevent disputes from arising. Alternate forms of resolution are also available through mediation and/or arbitration.

8. When should you update your Will? Why should you do this?

Your will should be updated any time you encounter a significant life event which may change the way your Estate is administered. Examples of this would include a new marriage, the birth of children, a divorce, or the death of a beneficiary.

9. Do you have to include your spouse and/or children in your Will?

You are required to meet legal and moral obligations as outlined in:

The Divorce Act;
The Matrimonial Property Act;
The Family Law Act; or,
The Maintenance Order Act.

10. How does marriage, separation, and/or divorce affect a Will?

None of these events automatically change the way that a Will is administered, and therefore, if you undergo any of these events, you should take steps to update your Will to accurately reflect your current wishes as to how your Estate is administered.