Preparing a last will and testament, as well as ensuring that it is also updated after big life events such as marriage, the birth of children or acquiring property, is an important step that people should take when considering their estate planning options. However, most people either don’t have an updated will, or any will at all. While it may be tempting to get a “Do it yourself” will kit or to create a will online, there are a number of reasons why we recommend having an experienced wills and estates lawyer prepare your will.
What is a last will and testament?
In Alberta, the law governing wills is the Wills and Succession Act (the “Act”). Under the Act, a last will and testament is simply referred to as a “will”. A will is a legal document that allows the person creating the will (the “testator”) to direct how his or her property will be distributed after the testator’s death, name the testator’s personal representative (“executor”) who will represent the testator’s estate after their death and carry out the wishes stated in the will, and name a guardian for any children who are minors at the time of the testator’s death.
What types of wills are valid in Alberta?
There are two general types of wills in Alberta: (1) a holograph will, and (2) a formal will. A holograph will is a will prepared entirely in the testator’s own handwriting and signed by them. It does not require any witness signatures. Although this kind of will is not legal in all jurisdictions in Canada, it is recognized in Alberta as a valid form of will.
A formal will must also be in writing and have the testator’s signature. In contrast to a holograph will, however, a formal will must be signed by the testator in the presence of two witnesses, who will also sign the will in the presence of the testator.
In order to make a valid will, a testator must be over the age of 18, and also have the mental capacity to make the will.
What happens if a person dies without a valid will?
If someone dies without a valid will, they are said to have died “intestate”, and Part Three of the Act sets out how and to whom a deceased’s property will be distributed. The Estate Administration Act also applies when a person dies intestate, and provides who will be appointed as a personal representative when there is no will. A “personal representative” is the counterpart to an executor of an estate for those who die intestate.
Can a will be changed or replaced?
We recommend retaining an experienced wills and estates lawyer to change or replace a will. The Act has very specific rules about the alteration, revocation and revival of wills, and a testator will want to ensure that any revised or new will they create complies with the requirements in the Act and is valid.
Do you need a lawyer to create a will in Alberta?
Although a lawyer-drafted will is not required for a will to be validly created in Alberta, we recommend retaining an experienced wills and estates lawyer to draft your will for several reasons. First, online “create a will” programs or “do it yourself” will kits are often not comprehensive enough for proper estate planning for every person. Generally, these options will only work for a testator with a basic estate of very limited assets. Online programs or will kits do not deal with more complicated aspects of estate planning in wills, such as the creation of trusts, “common law” relationships (called adult interdependent partners in Alberta) and second marriages/blended families, dual citizenship, or international assets.
A competent wills and estates lawyer is well-versed in the legal requirements under the Act to ensure your will is both comprehensive and valid, and addresses all of your estate planning needs. A wills and estates lawyer can assist with every aspect of estate planning, including tax planning strategies and end of life options as applicable. Having a lawyer draft your will can also help to avoid the possibility of future litigation, by avoiding any ambiguities or contradictions in drafting. Lastly, using a lawyer to draft your will ensures it satisfies any new or updated legal requirements for a valid will under the Act.
CARSCALLEN LLP’S WILLS, TRUSTS, ESTATES, AND ESTATES LITIGATION EXPERTISE
Our team of wills and estates lawyers have the necessary expertise to help you when it comes to planning for the future of your business and your personal life. Our lawyers also have extensive experience litigating estate disputes at all levels of Court in Alberta, and can help you navigate the appropriate channels to resolve any disputes that may arise.
With entrepreneurial backgrounds, our lawyers will take the time to get to know you and your goals, in order to give you comprehensive, personalized and focused wills and estates advice. If you have any wills and estates inquiries, including any questions about estate litigation and trusts, please contact any member of our Wills, Trusts, Estates, and Estate Litigation team for more information.
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