PREPARING YOUR WILL PACKAGE – TIPS
Our firm offers comprehensive Wills packages (single or couple), including any or all of the following:
- Formal Will
- Power of Attorney
- Personal Directive
Please note that if you choose a couple’s package, you and your spouse or common law partner must each complete separate questionnaires, even if the information is relatively the same for each person. The following information is provided to help guide you in this process – to help you understand some of the terminology associated with your Will, Power of Attorney, and Personal Directive.
A Personal Representative is a trusted person you name in your Will who will distribute your Estate to your beneficiaries, and carry out your instructions under the Will. Some things to keep in mind about a Personal Representative:
- If you are married or common law, your Personal Representative will usually be your spouse.
- You should name one or more alternate Personal Representatives should your first choice predecease you or be for any reason unable or unwilling to administer your Estate.
- You may name one or more joint Personal Representatives to work together.
- A Personal Representative can be a beneficiary.
- Before naming a Personal Representative in your Will, ask if they are willing and able to carry out these duties.
- We advise that your Personal Representatives live in Alberta to avoid complications or additional costs.
- Personal Representatives should be trustworthy, capable of handling the affairs of your Estate, and prepared to deal with potential family conflicts, should the circumstance arise.
Personal Representative Fees
Alberta legislation states that Personal Representatives are entitled to receive fair and reasonable compensation for administering your estate. If you specifically name a fee amount in your Will, then this is the maximum that can be paid. If you don’t specify an amount, your beneficiaries or the courts will have to make the decision. Therefore, we do recommended that you specify a fee (or your intentions, if you don’t want to pay your Personal Representative a fee) in your Will to avoid potential issues.
Under current legislation, couples who live together but are not married may form an “Adult Interdependent Relationship” (previously called common law). One of the following criteria must exist to form such a relationship:
- You have lived in a “relationship of interdependence” continuously for at least three years;
- You have lived in a “relationship of interdependence” of some permanence, and have a child in that relationship by either birth or adoption; or
- You have signed an Adult Interdependent Relationship agreement.
Obligations from Previous Relationships
It’s important to identify and provide for any existing or potential obligations to a current or previous spouse, “common law” partner, children, grandchildren, or great-grandchildren – which is why we include questions about these relationships in our package questionnaire.
Your Estate is comprised of the total of all your assets, minus all of your debts, but does not include:
- Any assets that are jointly owned by you and one or more other people;
- Pensions, life insurance policies, or other financial instruments with a named beneficiary; or
- Specific gifts or legacies you identify in your Will to be left for individuals.
These items will transfer directly to the designated beneficiary or joint recipient after your death, though it is a good idea to keep a list of these assets and named beneficiary documents for ease of convenience when your Personal Representative reviews your Estate.
After paying all of your funeral expenses, taxes, and other debts, all remaining assets (called in the Will, the “Residue of your Estate”) will be distributed by your Personal Representative to the beneficiaries you name in your Will, as per your instructions.
If you have minor children (under the age of 18 years), or children over the age of 18 who have special needs, you should identify one or more individuals in your Will to act as a “Guardian” to care for these dependent children. In rare circumstances, someone other than the person you named in your Will may apply to the Court to be your children’s Guardian, but the Courts will always consider your wishes if clearly identified in your Will.
As with the Personal Representative, you should always name one or more alternate Guardian(s) in your Will, in the event that your first choice predeceases you, or for whatever reason is unable or unwilling to carry out this important responsibility.
Support for Guardians
There are different ways to provide for the financial care of your dependent children:
- You may provide a specified “lump sum” amount in your Will;
- You may provide your Guardian with a specific “monthly payment” plan; or
- You may include a clause that gives your Guardian general power to access your Estate’s financial resources as reasonably required for the care of your dependent children.
Distribution of Estate
As noted above, your Estate is the sum total of all your assets, less your debts, and not including items that are either: joint, have a named beneficiary, or are a specific gift or legacy to others. Once your funeral expenses, taxes, and all debts are paid, your remaining assets form the “Residue of your Estate” and will be distributed by your Executor as instructed under your Will.
We recommend that you make a list of all your assets and liabilities, and consider how you wish your assets, property, and personal items to be distributed. We include questions on our questionnaire about RRSPs, RRIFs, pensions, insurance, etc. so you can identify all of the financial implications of your Estate and plan accordingly.
Gifts and Legacies
Certain items that you name be left to a specific person do not form the Residue of your Estate, but will be distributed directly to that named individual. If you decide to sell, give away, or replace any of these items prior to your death, you will need to change your Will respecting those gifts. When considering items to list as “specific gifts,” please consider the following guidelines:
- Include only items of significant monetary or sentimental value;
- Clearly identify what the item or legacy is, and to whom it is to be distributed;
- Remember that if you end up selling, giving away, or replacing an item gifted in your Will, you will need to change your Will regarding that gift.
A beneficiary is someone who receives or is entitled to receive property under your Will. Before completing the questionnaire, consider the potential people in your life you may wish to receive part of your Estate. If you are married or common law, the Residue of your Estate will typically all go to your spouse or partner. There may be negative tax implications for your spouse or partner if you do not leave your entire Estate to him or her. Please review these other considerations as well, prior to preparing your Will:
- If your spouse or partner predeceases (dies before) you, how will your Estate be distributed?
- If one or more children are minors, at what age will they receive their share of the Estate?
- If a child dies before you, or before reaching the age they are entitled to receive their share, who will receive that child’s share of the Estate?
- If you and your spouse or partner die at the same time, how will your Estate be distributed?
- If you, your spouse, and children all die in a common accident, how will your Estate be distributed?
In your Will, you will have opportunity to specify how you wish your remains to be cared for. Specifically, you may indicate your wishes regarding the following considerations:
- Any specific funeral arrangements you have made.
Please feel free to contact us if you have any questions that aren’t answered on our site, or to schedule an appointment. We’re always happy to chat with you about any of your legal needs.
- Phone: (587) 272-2050
- E-mail: email@example.com