Wills: the Basics
January 30, 2022
Estate, Wills
A Will is a legal document that can ensure that your assets will be distributed to the beneficiaries of your choice in the way that you wish, in a timely and efficient manner. If you die without a valid Will, the Estate Administration Act of Alberta will direct how your estate is to be divided. If this occurs, the distribution of your estate may be delayed, causing a burden on your family.
What exactly happens when you pass away?
Probate
Probate is the entire process of administering a dead person’s estate. This involves organizing their money, assets, and possessions and distributing them as inheritance – after paying any taxes and debts.
Most Wills with considerable assets, such as bank accounts, real estate, investments, retirement plans, and so on require probating. The main exception to the probate rules in Alberta is for very small estates with few assets. For instance, if all assets in the Will are jointly owned by the spouse of the deceased or the amounts concerned are extremely small, it may be possible to avoid the probate process.
Financial institutions have some discretion before releasing funds, transferring title, etc., but generally request Court-ordered proof before making transfers from an estate for their own legal protection.
If the deceased has left a Will, it will name someone that they’ve chosen to administer their estate. This person is known as the Executor of the Will. In Alberta, it is common to have one person be both the Executor of the Will and trustee of the estate. This person is commonly referred to as a “Personal Representative”.
Grant of Probate
A Grant of Probate is a Court order to prove the validity of the deceased person’s Will and gives the person appointed in the Will, the Personal Representative, the authority to carry out the deceased person’s directions contained in the Will and in accordance with the laws of Alberta. The Grant of Probate is issued when the person appointed as the Personal Representative of the Will makes an application to the Court. The application will include the deceased person’s Will.
What are the basic steps in the whole Probate process?
1. Locate the Will.
2. Contact a Probate Lawyer.
3. Gather Documentation.
4. Draft, sign and submit the probate application.
5. Await the grant of probate.
How long does this process take?
To file the application: It takes some time to prepare the probate application properly, but if you are diligent, the application can usually be prepared and filed within one week. At Laws & Beyond, we work with our clients to prepare and file as quickly as possible. Normally, we file within 1-2 weeks of first hearing from you.
From application to grant: Once the application has been prepared and filed, it takes time for the Court to process the application. The amount of time required varies widely depending on the Court where the application was filed. The probate process in Alberta can take from 6-8 weeks to 6-7 months after a person passes away in Alberta. This ultimately depends on many factors, including how busy the Courts are as well as how complete the application is and the level of complexity of the estate. The application must be filed in the Court where the deceased resided, so unfortunately you cannot simply choose to file in a “faster” Court.
To administer the estate: Administration of the estate after probate is in the hands of the Personal Representative. In the usual case, the Personal Representative has a year to administer the estate. However, as it can take 4-6 months to receive a clearance certificate from the Canada Revenue Agency, many times estate administration will extend beyond one year even if the Personal Representative is very diligent.
Who can make a Will?
According to Section 13 of the Wills and Succession Act of Alberta, a Will can only be made by:
(1) An individual who is 18 years of age or older may make, alter or revoke a will if the individual has the mental capacity to do so.
(2) An individual who is under 18 years of age may make, alter or revoke a will if the individual has the mental capacity to do so and if the individual
(a) has or has had a spouse or adult interdependent partner,
(b) is a member of:
(i) a regular force as defined in the National Defence Act (Canada), or
(ii) another component of the Canadian Forces and is, at the time of making the will, placed on active service under the National Defence Act (Canada), or
(c) is authorized by an order of the Court under Section 36.
What are the requirements of a valid will?
According to section 14 of the Wills and Succession Act, to be valid, a Will:
(a) must be made in writing,
(b) must contain a signature of the testator that makes it apparent on the face of the document that the testator intended, by signing, to give effect to the writing in the document as the testator’s will, and
(c) subject to any order made under Section 37, must be made in accordance with Section 15, 16 or 17.
In addition, the vast majority of Wills must meet the requirements under Section 15 of the Wills and Succession Act. According to that section, a Will may be made by a writing signed by the testator if (a) the testator makes or acknowledges his or her signature in the presence of 2 witnesses who are both present at the same time, and (b) each of the witnesses signs the will in the presence of the testator.
Testamentary Capacity
In order to be able to make a Will (have testamentary capacity), you must:
- Be of valid age
- Have knowledge and approval of the contents of the Will
- Have the mental capacity to make a Will, and
- Be free from undue influence
Questions?
There are several things to consider when drafting your will, including but not limited to the above. If you have any questions about Wills & Estates, then call Prabdeep Brar at 403-300-LAWS or emails us at info@lawsnbeyond.com
– Written by Prabdeep Brar
