How to Write a Will in Alberta:Some Tips for Preparing
Our Wills Package is designed to deal with simple situations only. If your situation is complex, you will need to meet with a lawyer in person. Click here to see our definition of a simple will.
If you and your spouse are preparing your Wills at the same time, you must each complete the questionnaire.
The following should help you understand the requirements before proceeding:
An Adult Interdependent Relationship (previously called common law) exists when two people have: a) lived in a “relationship of interdependence” continuously for at least three years; b) lived in a “relationship of interdependence” that is of some permanence, and have a child by birth or adoption; or c) signed an adult interdependent relationship agreement.
Obligations from Previous Relationships
If you have any existing or potential obligations to a current or previous spouse or adult interdependent partner, children, grandchildren or great-grandchildren, these obligations should be documented in your Will.
An executor is a person you name in your Will to carry out your instructions and distribute your estate to your beneficiaries.
- If you are married, your executor will usually be your spouse.
- You may also name one or more co-executors or alternate executors should your first executor predecease you or be unable, or unwilling, to administer the estate.
- An executor can be a beneficiary.
- Before you name your executors in your Will, ask them if they are willing and able to carry out these duties.
- It is advisable that your executors live in Alberta to avoid complications and additional costs.
- Executors should be trustworthy and capable of handling the affairs and dealing with potential family conflicts.
The surrogate rules state that executors are entitled to receive fair and reasonable compensation for administering the estate. If you stipulate the fees, this is the maximum that can be paid. If you don’t, your beneficiaries or the courts will have to make the decision. It is strongly recommended that you determine the fees to avoid issues.
Your estate is the total of all your assets less all your debts, except for:
- Assets that are owned jointly by you and one or more others (joint tenants).
- Pensions or life insurance policies that have a specific beneficiary.
These items will transfer directly to either the joint tenants or the other designated recipients. After paying all debts, all remaining assets (the residue of your estate) will be distributed to your designated beneficiaries as per the instructions in your Will.
If you have minor children or children with special needs, you should recommend a guardian to ensure their needs are provided for. Although another person can apply to be a guardian, the courts will consider your wishes in making the final decision. You should also name an alternate guardian should your first guardian predecease you or be unable to carry out his or her responsibilities.
Consider whether your guardian(s) are financially capable of supporting your children and, if not, you may provide for a lump sum or monthly payments to assist them.
Distribution of Estate
Your estate is the total of all your assets less all your debts, except for: a) Assets that are owned jointly by you and one or more others (joint tenants), b) Pensions or life insurance policies that have a specific beneficiary, c) Gifts and legacies that you specify in your will to be left to others. These items will usually transfer directly to either the joint tenants or the other designated recipients.
You should make a list of all your assets and liabilities and decide how you want these distributed. It’s also helpful in making these decisions to know whether your RRSPs, RRIFs, other pension benefits or insurance proceeds go to your estate or to other beneficiaries.
After paying all debts, and paying your executor and/or guardian fees, all remaining assets will be distributed to your designated beneficiaries as per the instructions in your Will. The remaining assets are referred to as the Residue of the Estate.
Gifts and Legacies
If you specify that certain items are to be left to a specific person, those items will not form part of the residue of your estate but will go to the person named. You may still sell or replace those items but this will require that you change your will.
Please do not list any items unless:
- they are definitely valuable or of great sentimental value, or
- you are prepared to pay your lawyer to change your Will when a gift or legacy is sold or replaced
Think about all the potential people you may wish to receive part of your estate. If you are married or in an adult interdependent relationship, your estate will typically go to your spouse/partner. If you do not leave your entire estate to your spouse/partner, this may have adverse income tax implications for your spouse/partner.
- If your spouse/partner predeceases 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 of the estate, who shall receive that child’s share of the estate?
- How is the estate to be distributed if you and your spouse/partner die at the same time?
- How is the estate to be distributed if you and your spouse/partner, and all your children, and all your grandchildren die in a common accident?
You will indicate your wishes regarding:
- Donation of your body, or organs and tissues, to medical science
- Any pre-arrangements you have made