“Planning for my death and mental or physical incapacity was so much fun!” Said no one, ever (and I don’t expect to see a song titled, “Let’s Talk About Death” hit the top 10 anytime soon). Let’s face it, discussing death and incapacity is not one of the highlights of adulthood. It is, however, an important and oddly comforting task to check off your to-do list.
Do you really need to prepare your estate?
In short, if you own property or have dependents, there are three documents you should prepare to help your loved ones manage your affairs:
1. Last Will. Your Last Will describes how to distribute your estate. In Alberta, there are two types of Wills. A Formal Will is typically prepared with a lawyer. It is typed and signed in the presence of two witnesses, who also sign the document. In contrast, a Holograph Will is prepared in your own handwriting and signed by you. You do not require a witness.
2. Personal Directive. Also known as a Living Will or Health Care Directive. In the event you are incapacitated, a Personal Directive gives authority to an individual to make decisions related to your health care.
3. Enduring Power of Attorney. An Enduring Power of Attorney grants an individual the power to make decisions with respect to your finances and the management of your property.
I know I need a Will, but where do I start?
Choosing an Executor. Your Executor will be responsible for protecting and administering your estate. You want to choose someone who is willing and able to act, and whose judgment and decision-making ability you trust and is most closely aligned to yours.
Naming a Guardian. As a parent, deciding who will raise your children in your absence is one of the toughest decisions you’ll face. You want to choose someone whose parenting style, values, and religious beliefs closely match your own. Carefully consider who is able to take on the emotional, financial, and physical responsibility of caring for a child.
Distributing your Estate.
When determining how to distribute your estate, consider possibilities such as:
Testamentary Trusts for Minor Children. If you have minor or dependent children, you can direct your Trustee to distribute your estate in percentages or amounts to your children at different ages. Keep in mind that your trustee will be able to advance money to your minor children outside of the distribution schedule at their discretion for items such as education and related materials, purchase of a car or home, etc.
I already have a Will; do I need a new one?
A Will is considered a ‘living document.’ This means that as your life changes, so should your Will. It is recommended that you review and update your Will every five years.
You should also review and update your Will should any of the following apply:
Growing family. A new baby is a busy and exciting time. It’s also an important time to make or update your Will. You’ll want to appoint a Guardian or review whether the currently-named guardian is still the right choice for your new family circumstances.
Child with special needs. Most estates are divided equally amongst your children. If you have a special needs child, you will want to discuss with your lawyer any considerations essential to their ongoing care.
Marital status change. In the case of a divorce, you most likely don’t want a former or separated spouse to act as your Executor or benefit from your estate. To avoid problems, make sure you have a clear plan in place regarding any partner who is no longer part of your life.
If marital circumstances change or you are living common law, you will also want to consider updating your Will to include your new spouse or partner in your estate plan.
Choice of Executor, Guardian, Trustee, or Beneficiaries has changed. You may change your mind about significant people named in your Will. If you decide to make any changes, it’s time for a revision to your Will.
Other reasons why you may need to create or update your will include:
Are all Wills created equal?
A Will is not a standardized document. Although there are common elements in all Wills, the complexity and detail vary dependent of the author. If you choose to prepare a handwritten Holograph Will, it is important that you do not overcomplicate the document and do your research and ensure it is compliant with current legislation. Will kits offer templates for basic Wills, but do not include legal advice. Should you wish to hire a lawyer, you will want to engage a highly-regarded professional that specializes in Wills and Estate work.
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