WILLS AND ESTATES
No one wants to think about the end of one’s life or illness. Have you thought about the consequences of becoming incapacitated or dying without an Enduring Power of Attorney, Personal Directive and Will?
The most useful document that can be completed to ensure a smooth transition after death is to prepare your Last Will and Testament to ensure your loved ones are cared for and that all other matters such as liquidating assets and paying debts can be settled easily with the least amount of disruption to those left behind.
An Enduring Power of Attorney and Personal Directive are two documents that are extremely important while you are still alive. Both documents ensure that an individual is named that can handle your financial interests and health care interests as per your wishes. These documents are extremely important to be able to avoid costly applications for Guardianship and/or Trusteeship upon you becoming incapacitated and ensuring someone is able to handle your affairs.
Why do I need a Will?
Having a Last Will and Testament prepared may not be mandatory, however, it can help grieving family members who are trying to decide what to do with your assets.
If you have children, a Last Will and Testament can name guardians for your children until they reach the age of majority (18 in Alberta). Your Will can specify how you want the children raised, who takes care of their financial needs and at what age the inheritance can be distributed to them.
If you own a business, the matter of dissolving or continuing a business can be quite complicated. Your Will can lay out a plan for the continuation of your business or maybe for the sale of your business. Either way, a Will can assist and guide your executor on following through with your wishes. After all, you probably spent many hours building your business so the best way of dealing with your business for your family is by leaving behind specific instructions in the event of your death.
Most of us own a home or other property and the Last Will and Testament not only dictates who will receive that home or property, it can also direct when the property should be sold and for how much and what the beneficiary(ies) can do with the funds.
What makes a Will valid in Alberta?
The legislation governing Wills is called The Wills and Succession Act. That legislation stipulates that you must be 18 years of age or older and of sound mind to make a Will. There are exceptions, of course, for example if you are a member of the Canadian Forces then you don’t have to be 18 years of age. The Will must be in writing, and it must follow the provisions of the legislation in order to be valid
Enduring Power of Attorney
An Enduring Power of Attorney (EPA) allows you to appoint someone (an attorney or attorneys) to act on your behalf if you are unable to make decisions about your finances either because you are mentally incapacitated (such as being in a coma or having dementia or Alzheimer’s) or on an extended vacation and away from home.
An Enduring Power of Attorney may be granted to anyone you trust, such as your spouse, child or other family member. While the law does not require the attorney to be an Alberta resident, sometimes if the attorney is expected to do a significant amount of work, it might be better to choose someone who lives in the Province.
An Enduring Power of Attorney can be limited so that the attorney can only handle certain financial matters or it can be limitless whereby the attorney can even sell real estate.
Keep in mind as we get older, if one spouse moves into a long-term care facility or nursing home and the other spouse decides that it’s time to sell the family home because it’s too large to handle or the other spouse needs funds to pay for the nursing care costs, if the spouse in the nursing home doesn’t have a signed EPA, then the other spouse cannot sell the home or sign any mortgage documents. That means the other spouse may need to apply to court to be appointed as a Trustee in order to sell the home. This will involve significantly more legal costs. An Enduring Power of Attorney would resolve this dilemma.
Personal Directive
A Personal Directive deals with important healthcare issues including but not limited to life support, health care decisions, and medical procedures. A Personal Directive comes into effect once you no longer have the mental capacity to make those decisions.
Do I need an EPA and Personal Directive if I already have a Will?
Remember that a Will is only looked at once you have passed away. The EPA and Personal Directive are both documents that are used while you are still alive. These documents are usually created in addition to the Will. Once you pass away, the EPA and Personal Directive are no longer valid.
Grant of Probate or Grant of Administration
Our office is able to assist in after death matters such as Grant of Probate or Grant of Administration. Our lawyers are able to ensure that during this tumultuous and highly emotional time, all estate issues are handled appropriately and efficiently. Our lawyers are experienced with both contentious and non-contentious estate files.
If you have a will prior to passing away, your executor is able to move forward with a Grant of Probate. If there is no will, then a Grant of Administration is required. Both processes are required by an Executor to be able to liquidate an estate and distribute funds appropriately.