Many people fail to get a Will done for the wrong reasons such as “I do not have many assets”.  However, surprisingly, many people also get a Will done for the wrong reasons such as “If I do not have a Will, the government will take all of my assets”.  Unfortunately, there is a lot of misinformation about this very important area of the law.  In this blog entry, we cover some of the biggest misconceptions people have regarding Wills & Estates in Alberta.

Please note that this blog entry is only for informational purposes and is not meant to be legal advice for your specific case.  If you require legal advice, please contact our office, and book a consultation to discuss your matter.

“I do not need a Will because I do not have many assets”

The flaw in this statement is perhaps best demonstrated with an example.

Imagine an individual named Bob.  Bob is 25 years old and does not have a spouse or any children.  Bob’s parents passed away when he was very young.  His only close relatives are his brother, John and his uncle, Tom.

After graduation from university, Bob has been able to save $10,000, which is kept in a savings account.  Other than this savings account, Bob does not have any other significant assets.

In the unlikely event of his death, Bob would like the $10,000 to go to his uncle, Tom, who helped Bob get through university.  He certainly does not want the money to go to his brother, John, whom he never got along with.  Also, John has a bad gambling problem and will likely gamble the savings away.  However, because Bob is young and does not have many assets, he does not see a reason to get a Will done.

One fine day in summer 2020, Bob attends a party (contrary to advice from experts) and attracts coronavirus.  The complications from the virus lead to Bob’s untimely demise.

Because Bob did not have a Will, the entirety of his estate passes to his brother, John in accordance with government legislated intestacy rules.  Bob’s uncle, Tom receives absolutely nothing.

Despite the fact that Bob only had one asset, he nonetheless had a very specific wish as to who should receive that asset after his death.  However, because Bob did not have a Will, his specific wish had no legal effect.

The result above demonstrates that the number of assets or the value of an estate has no bearing on whether someone should have a Will or not.  If an individual has specific wishes on how their estate should be distributed, they need a Will.  Otherwise, unintended consequences may follow (even for a relatively small $10,000 estate).

“If I do not have a Will, the government will take all of my assets”

If an individual dies without a Will, the government legislated intestacy rules determine how their estate would be distributed.  However, this does not mean that the government will take all of their assets.

As long as an individual has “heirs”, the estate will be distributed to those heirs in accordance with the intestacy rules.  However, only in the rarest cases where an individual has no heirs at all would the estate be transferred to the government.  This would be a case where a person does not have a spouse, children, grandchildren, parents, siblings, grandparents, uncles/aunts, cousins etc.  In plain English, basically a lot of people will have to die before the government is entitled to an individual’s estate!

“If I have a Will, my executor does not need to go through the Court to distribute my assets”

A Will allows you to nominate a personal representative (formerly called an executor) as well a specify how your estate should be divided.  However, before your personal representative can use your Will in any significant way (such as to sell your home and divide the proceeds or to access a bank account with a significant balance), they will be required to get something called “probate” from a Court.

Probate is legalese derived from Latin and means “to prove”.  When an individual dies leaving a valid Will, their personal representative will need to “prove” the Will before they can take significant actions pursuant to the Will.  The proving is done by making an application to Court and submitting the Will.  Our website has some helpful information on the Probate process for you to review.

Without probate from the Court, organizations such as a bank or Land Titles Office will likely not accept your Will and may not even want to talk to your nominated personal representative.  Essentially, those organizations need assurances from the Court before they are willing to allow someone else to sell your land or withdraw $100,000 from your account.

“If I have a Will, then all of my assets will be distributed in accordance with my wishes as outlined in the Will”

It is important to note that both a Will and the government legislated intestacy rules only distribute the assets that are part of an individual’s estate.  However, there may be many significant assets that may never become a part of an individual’s estate.  Those assets will not get distributed in accordance with the individual’s Will.

Two broad categories of those types of assets are:

• Assets held in joint tenancies (such as land)
• Assets with designated beneficiaries (such as a life insurance policy)

For assets held in joint tenancies, the surviving joint owner inherits the asset upon the death of the individual.  The asset does not go to that individual’s estate and therefore does not get distributed in accordance with their Will.

For assets with designated beneficiaries, the beneficiary inherits the asset upon the death of the individual.  The asset does not go to that individual’s estate and therefore does not get distributed in accordance with their Will.

However, like many things in law, there are many exceptions to these two broad categories.  As a result, it is best to obtain legal advice when dealing with assets involving joint tenancies and designated beneficiaries.

Learn More About Wills & Estates

Surprisingly, there many other misconceptions about this very important area of the law.  If you have any questions about a Wills & Estates matter, our office may be able to help.

Reach out to us for a consultation using our Contact Us page or call (780) 760-7234. We’re waiting to answer all of your questions and help you secure the future of your estate.

Estate planning is important for anyone; however, it becomes even more crucial when blended families are involved.

A case in example is Peters Estate (Re), 2015 ABQB 168 (CanLII). Perhaps, paragraph 20 of the decision best summarizes the results of what can happen when an individual does not have a Will:

“This case is an example of the personal difficulties and harm to relationships which can occur when individuals do not have a will. The distribution of this modest estate has become an instrument with the potential to create, enhance or perpetuate ill will amongst five family members at a time when they should instead be benefiting from good memories of their mother and father. The Court encourages them to advance those purposes despite the legal outcome here.”

Brief Summary of Peters Estate (Re) Case

Ileen Peters and Lester Peters were married for 43 years.

They shared one biological child. In addition, Lester had four children from a prior relationship (Ileen’s stepchildren).

During their 43-year long marriage, Ileen and Lester treated all five children equally.

Lester passed away in 2009. At that time, all children gave up their interest in Lester’s estate in favour of Ileen (essentially Ileen received 100% of Lester’s estate). Ileen then passed away in October 2013. Ileen did not have a Will.

Because Ileen did not have a Will when she died, her estate would be distributed under the intestacy rules in the Wills and Succession Act, SA 2010, c W-12.2. In Ileen’s case, intestacy rules dictated that her estate would be distributed equally between her descendants. However, the very definition of the word “descendants” led the five children to Court.

The primary issue for the Court to determine was whether the four stepchildren were Ileen’s descendants or not. If they were descendants, they would share equally in Ileen’s estate. If they were not, they would get nothing from Ileen’s estate (i.e. the one biological child would inherit 100% of Ileen’s estate).

Unfortunately for the four stepchildren, the Court decided that stepchildren did not fall under the definition of the word “descendants”.

The stepchildren appealed the decision to the Court of Appeal, arguing that “[t]he current Wills and Succession Act has failed to recognize the need to protect blended (step) families”. However, the Court of Appeal dismissed the stepchildren’s appeal.

Among other things, the Court of Appeal cited an Alberta Law Reform Institute report, stating that the relationships between stepchildren and stepparents are too variable to support a presumption that a majority of stepparents intend their stepchildren to inherit in their estate.

In conclusion, the Court of Appeal restated the words from paragraph 20 of the original decision, which has been quoted above.

Comments on Peters Estate (Re) Case

Given the family dynamics described in the case, it is likely that both Ileen and Lester would have wanted all five children to share equally in their estates. However, because the parties did not have a Will, their wishes did not matter. In addition, the continued litigation likely deteriorated the relationship between the siblings, something that Ileen and Lester likely did not want.

Importance of Estate Planning for Blended Families in Alberta

The unfair result in Peters Estate (Re) is just one example of a situation where unintended consequences can follow if an individual does not have a Will.

Given the increased numbers of blended families in our society, estate planning is something that every individual should consider. Although the intestacy rules are supposed to be default rules that work for the average family, they may not work for your family. As a result, having a Will is more important than ever.

Get Help with Estate Planning in Alberta

Estate planning can be particularly important in cases where you have a blended family, a large amount of assets, children with special needs, business interests, property in multiple jurisdictions and obligations to support others.

Safi Law Group can assist you with all aspects of Estate Planning.

Reach out for a consultation using our Contact Us page or call (780) 760-7234. We’re waiting to answer all of your questions and help you secure the future of your estate.

We all enjoy finding shortcuts and DIY tricks to make life a little easier.

Handling things on your own may feel like a win when it comes to dashing through the self-checkout line at the grocery store. However, the shortcut mentality might not work for something as important as your will.

Let’s start by answering the big question. Are will kits actually legal in Alberta?

Yes, you can legally use a “do it yourself” will kit to create a will in Alberta.  Please note that we are not talking about holographic wills (which will be discussed in our blog soon), however, we are talking about those fill-in-the-blanks will kits you see at your local grocery store for $39.99!

We want to make it clear that you aren’t held to any legal requirement that says you must have your will prepared by a lawyer. However, the real question might be if it’s wise to take a relaxed approach to what’s probably the most important legal document you’ll ever touch.

There are many legal nuances in play if you have assets outside of Canada, have a common-law spouse or own recreational or business property. Matters can also grow complex as you decide on executors or trustees for minor children.

If you have any questions about will kits in Alberta, reach out to our law firm by calling (780) 760-7234.

Common Issues With DIY Will Kits

Legal will kits are attractive to people looking for cheap wills that can be done quickly. It’s true that you’ll probably save money if you purchase a kit.

The problem is that people quickly find that they are entering uncharted territory once they begin building their wills.

It’s going to become a question of just how much your time is worth. Unfortunately, you may spend hours trying to work out a question that your lawyer could answer clearly in a short phone call.

The somewhat generic, one-size-fits-all nature of a will kit can be problematic.

Unfortunately, a will can be declared invalid if it contains ambiguous terms, unclear wording or inconsistent provisions. Many people execute wills that contain red flags because they don’t have a lawyer to point out their mistakes.

The danger is that you’ll have a false peace of mind about what you’re leaving behind for your loved ones.

It’s not uncommon for a person’s assets (money, real estate, and more) to go to an unintended recipient due to vague wording.

Do-it-yourself wills are notoriously easy to challenge in court.

Most people don’t realize that an Edmonton wills and estates lawyer will assess your mental capacity to execute a will when you sit down to get your wishes on record.

This serves as a protective measure in the event that a family member or other party tries to challenge your will on the grounds that you were not mentally competent at the time of the will’s creation.

Unfortunately, you don’t have this safeguard in place if you are using a DIY will kit. If getting a will done the right way is important, don’t hesitate to use our Contact Us page or call (780) 760-7234.

The bottom line is that the “generic” nature of a blank will form that’s designed to be general enough for everyone often leaves lots of room for interpretation. That means that there’s a good chance that your wishes may be interpreted in a way you didn’t intend if your will is brought to court.

Use our Contact Us page or call (780) 760-7234 to book a consultation if you need to get a will done.

How a Wills & Estates Lawyer Can Protect Your Interests

Many Alberta will kit products contain lengthy disclaimers stating that what you’re being given should not constitute as legal advice.

That’s the company’s way of washing its hands of errors that create complications or losses. By contrast, law offices actually have liability insurance that protects you against errors.

Getting a will signed and witnessed properly with help from a lawyer brings peace of mind that can’t be achieved with an Alberta will kit.

Our law office is here to help you create a will without any shortcuts and at very reasonable prices. Reach out to us today to get started.