Wills and Estates In partnership with Edmonton Public

Wills and Estates In partnership with Edmonton Public Libraries

2 Disclaimer The information presented during this session may have limited application to your particular situation. The lawyer or law student that are here this evening CAN provide legal information that may give you a greater understanding of how the law might apply to your own situation. The presenter here this evening CANNOT provide you with individual legal advice.

Estate Planning Tools Will Enduring Power of Attorney Personal Directive

Wills Overview What is a Will Advantages in making a Limitations on Testamentary Freedom Will Proving a Wills and Succession Act Court Powers Requirements of a valid Will Executor Who can make a Will What happens if you don’t Effect of Marriage and Divorce have a Will

What is a Will? Lets you make decisions that will be carried out after your death A legal document containing a person’s wishes concerning how your estate will be distributed and who will be responsible for the distribution

What is an Estate? Land, assets, bank accounts in your name alone and insurance payable to your estate Property not forming part of your estate includes joint property owned by spouses, and life insurance, RRSP’s, and pensions where the estate is not the named beneficiary (key phrase: Designated Beneficiary)

Wills and Succession Act (WSA) Effective February 2012 Repealed and replaced: Wills Act Survivorship Act Intestate and Succession Act Dependants Relief Act Section 47 (pension plans and funds) of the Trustee Act

Requirements of a Valid Will Formal Will – section 15 of WSA In writing Signature of the testator Testator makes or acknowledges signature in the presence of 2 witnesses present at the same time Each of the witnesses signs the will in the presence of the testator Witness should NOT be a beneficiary or his/her spouse

Requirements of a Valid Will Holograph Wholly Will – section 16 WSA in the testator’s own handwriting and signed by the testator

Who Can Make A Will? Section 18 13 of WSA years of age Mental Under capacity 18 if certain conditions are met

Advantages of Making a Will You can exercise choice over YOUR: 1. Executor 2. Beneficiaries (charities, dependents) 3. Trusts for minor children (delayed gifts) 4. Trustee for the trusts 5. Guardian for minor children Potentially Tax less conflict amongst family and legal implications

Limitations on Testamentary Freedom – Family Maintenance and Support Family members can apply for support from the deceased’s estate. Family members include: Spouse, An A minor children, dependent adult children adult child under age 22 who is a full time student grandchild who depends on a deceased grandparent or great grandparent

Executor Locates Pays assets funeral costs, debts and taxes Distributes remaining money and property according to will Is accountable to the beneficiaries For more complex estates, may need professional advisors-lawyers and accountants

Executor Can choose any adult you wish Best Is suited if: trustworthy, reliable and competent Basic Most knowledge of business often a family member, a beneficiary or trusted friend Can also be a trust company

Effect of Marriage and Divorce Marriage or an adult interdependent agreement – section 23 of WSA no longer revokes a will Divorce – section 25 of WSA – revokes a gift, also voids appointments to the ex spouse

Example – Divorce Bill and Sue are married Bill leaves his convertible to Sue and appoints her as executor They Bill divorce after February 1, 2012 dies Sue does NOT get the convertible and is NOT the executor

Proving a Will (Probate) After death, a will is submitted to the Surrogate Court for “probate” A process whereby the court verifies that the will is valid and confirms the appointment of the Personal Representative (PR) PR For will need probate before dealing with property more complex estates , the PR may need professional advisors – lawyers, accountants

Court Powers Courts may admit outside evidence to establish testator’s intention (s. 26) Courts may validate improper wills and alterations (sections 37 and 38)

What Happens Without a Will An intestacy is defined in WSA as “an estate, or any part of an estate, that is not disposed of by a will” Someone with an interest in the estate must make an application that appoints him/her as the “administrator” Administrator executor has the same duties and powers as the

What Happens to the Estate Part 3 WSA Estate goes to immediate family: Examples: If you leave a surviving spouse or AIP and no descendants – all to the spouse/AIP – section 60 If you leave a surviving spouse or AIP and ONLY descendants from that relationship – all to the spouse/AIP – section 61

Example – Spouse plus children from other relationship: Spouse/AIP gets “preferential share” –greater of prescribed amount ($ 150, 000) or 50% of the net value of estate Rest divided equally among the surviving children and deceased children who left surviving descendants

Example - Spouse and AIP at the same time – section 62 of WSA William and Kate are married with two children William leaves Kate to live with Camilla and has a child within a year (AIP formed) William Kate dies intestate and Camilla divide preferential share Residue –each child takes 1/3

Example - Separated Spousessection 63 of WSA William and Kate are separated for more than two years or have a court order settling affairs William Kate dies intestate is disinherited (separated spouse deemed to have predeceased)

Example- Separated Spouses with Children- section 63 of WSA William and Kate are separated for more than two years (or have a court order settling affairs) with two children William Kate dies intestate is disinherited (separated spouse deemed to have predeceased) Residue – each child takes 1/2

Unclaimed Personal Property and Vested Property Act If there is no family or relatives as set out in the WSA, then the Unclaimed Personal Property and the Vested Property Act comes into play. If a person dies without a will, after 2 years from the grant of administration, the Administrator must give the Provincial Government any portion of the estate not claimed by a valid heir. The Provincial Government must keep this property/ equivalent value for 10 years. If no one comes forward to claim it within 10 years, then the property belongs to the Government.

Helpful Resources Centre for Public Legal Education has a booklet on things to do and consider when creating a will: http: //www. cplea. ca/ The full version of the Wills and Succession Act can be found on the Alberta Justice & Solicitor General website: http: //justice. alberta. ca/programs_services/wills/Pages/def ault. aspx

Planning For Incapacity Powers of Attorney Act Personal Directives Act

Powers of Attorney Act Allows for a Power of Attorney (POA): A document where you (the donor) authorizes someone (the attorney) to deal with property on your behalf. One of the difficulties with the standard Power of Attorney is that it automatically ceases to have effect if the donor becomes incapacitated. The legislation allows an attorney to continue to act notwithstanding future mental incapacity. This document is called an Enduring Power of Attorney (EPA).

An Enduring Power of Attorney Must Be… In writing Dated Signed before a witness If donor is physically unable, then signed by another person at the donor’s direction in the presence of the donor and witness Statement that either the POA is to continue despite any mental incapacity or infirmity of the donor that occurs after the execution of the POA, or the POA is to take effect only on the mental incapacity or infirmity of the donor (a “springing” enduring POA)

Key Points Must have mental capacity Authority terminates: On death of donor or attorney If a trustee is appointed If revoked by the donor who has capacity Attorney vs. Trustee under the Adult Guardianship and Trusteeship Act Court order takes time, more expensive, not a private affair Court decides who will be the trustee

Personal Directives Act Provides for a Personal Directive which is a legal document that you write in case something happens and you cannot make your own personal decisions in the future Non-financial decisions Example: healthcare, where to live etc. Donor appoints an agent Must be in writing, dated signed before a witness Agent vs. Guardian under the Adult Guardianship and Trusteeship Act

Helpful Resources Centre for Public Legal Education has a booklet on things to do/to consider when writing a Power of Attorney: http: //www. cplea. ca/ Information and forms for Personal Directives from Service Alberta website: http: //humanservices. alberta. ca/guardianshiptrusteeship/opg-personal-directives. html

Edmonton Community Legal Centre Offers free legal advice to low-income individuals and families on matters such as: Estates Small claims Landlord-tenant disputes Immigration law (including issues related to temporary foreign workers) Human rights concerns Employment law Debt law Income support appeals Possible to obtain lawyer to help create Will for free or at reduced cost Call (780) 702 -1725 or visit www. eclc. ca

Lawyer Referral Service Telephone Can service give you the names and telephone numbers of three lawyers who can help you with your situation No charge for first 30 -minute interview – after that can choose whether to pay lawyer for further services Call 1 -800 -661 -1095

Questions