Wills
INFORMATION ABOUT WILLS
This outline contains information to assist you in discussing and deciding what provisions you want to put in your Will(s). One point to remember is that if you are married, as spouses you will actually be signing separate Wills. You can therefore have different provisions in each Will, for example having different alternate Executors, Guardians or different beneficiaries.
1. APPOINTMENT OF EXECUTOR
The first decision to make for your Will is to select the person who you want to look after your personal affairs and to arrange for passing your property on to those you want to inherit it. This person is known as the “Executor”. There are many people you may wish to consider appointing as an Executor - spouses, brothers or sisters, parents, children over the age of 18, friends, acquaintances, or a trust company. In the case of a married couple, each spouse should appoint their spouse the Executor to begin with, unless for reasons of illness or age it would make more sense to appoint someone else.
You should also appoint someone as an alternate Executor, in case your first named Executor dies before you or because of illness is unable to serve when the time comes. If you have adult children, you may appoint them as the alternate Executors. More than one person to be an Executor, whether as the initial Executor or as the alternate Executor, in which case they would be joint Executors.
When appointing someone other than a spouse or a child or children as your Executor or as an alternate Executor, you should choose someone in whom you have confidence and trust that your affairs would be handled properly. It is helpful if the person has some general experience in handling business or legal matters, but the lack of that experience is certainly not a disqualification.
Many Albertans have their parents or siblings living elsewhere in Canada. You are allowed to appoint someone who lives outside Alberta as your Executor. In some cases there will be no alternative but to appoint an Executor or alternate Executor who lives outside of Alberta. However, it is preferable if possible to have someone living in Alberta, because a non-resident Executor may be required to post a bond in order to administer the estate, which would increase the expense of administering the estate.
You do not as a strict requirement need to have the consent of your proposed Executor(s) to their being appointed as such in your Will. As a practical matter, however, it would be wise to seek their consent, because if they declined to act there could be a delay in arranging for a new Executor.2. APPOINTMENT OF GUARDIAN
If you have any children under the age of majority (presently 18 in Alberta), or are planning to have children, one of your most important things you can do in your Will is to appoint someone to take over your parental role and duties for your children in your absence. You can provide for this in your Will by appointing a Guardian. The Guardian will assume legal responsibility for your child or children. In the case of a married couple, when one spouse dies, the other spouse automatically continues to have legal control and care of the children. When appointing a Guardian, you then are appointing someone who would take over when both spouses have passed away. You may appoint a sole Guardian or a pair as joint Guardians. The Guardian can be the same person as an Executor if so desired. Many people however like to have one person or persons named as Executor and different persons named as their Guardians. Also, it is not necessary to name an alternate Guardian but many people prefer to do so for the sake of convenience.
As in the case of Executors, it is not required that your Guardians live in Alberta. Unlike in the case of Executors, however it is not necessary for out-of-province Guardians to post a bond.
It is not a legal requirement that you have the consent of your proposed Guardian(s) to their being named Guardian. However, as with the appointment of an Executor, it is advisable to check with your proposed Guardian to see if they would be agreeable. You would not want to have a situation after your death where the Guardian you appointed declined the nomination, and your children were left for some time without anyone having legal Guardianship status.
3. BENEFICIARIES
The final step in a Will is deciding who you want to inherit your property. These are known as “beneficiaries”. The first step that will happen automatically in the administration of your Estate is that all outstanding debts and expenses must be paid first, including any funeral expenses. The balance of your estate remaining after payment of any debts and expenses is known as the “residue”. It is not necessary to provide in your Will for a specific listing of everything that you own. The most common method used in a Will is to leave your Executor in charge of passing on the residue to your beneficiaries. In the case of a married couple, it is most often the case that one spouse simply leaves the residue to the other spouse. If they have children, then the residue is left to the children, to be divided equally if there is more than one child. Where there is no spouse or no children, then the Will can provide for specified items of property to be given to specific persons if so desired, or alternatively, you may simply wish to designate one or more beneficiaries who would then receive the estate, or shares thereof. Any and all decisions regarding dividing the residue into shares and selling items in the estate can be left up to the discretion of the Executor.
Sometimes people wish to designate in the Will specific items, such as family heirlooms, to go to specific beneficiaries. This can be done but only if it is likely that your intentions for those items will not change in the foreseeable future. Some people also wish to leave specific legacies or shares of their estate for charitable institutions or educational institutions or the like. If this is your desire, it is very important that you confirm the correct legal name of the institution.
If you have any questions or concerns prior to developing your Will instructions, please feel free to contact me to discuss them. The laws governing these issues are sometimes complicated, and this outline only provides basic information on general points. If you have any specific problems or desires, you should obtain specific legal advice and opinion on those matters.