WILLS AND ESTATES
We help clients with matters relating to probate and the administration of estates. We can aid both Personal Representatives (executors) and persons who have been named as beneficiaries in a will, as well as the surviving family members of persons who have died without making a will. We provide practical, cost effective advice to people needing help in all of these areas.
- Enduring Powers of Attorney
- Personal Directives
- Estate Administration
- Executors, Administrators & Trustees
- Will Validity
- Dependant’s Relief Claims
- Applications for Guardianship and/or Trusteeship of Dependent Adults
Enduring Power of Attorney
If you are no longer able to make decisions for yourself due to illness or injury, your children, your spouse or your family members will want to care for you. They may need access to your assets to do that. Unless you have an enduring power of attorney, your family members may need to go to Court to access your assets to use for your benefit or to pay your expenses. An application under the Dependent Adults Act is stressful, costly and takes a very long time when there are urgent matters which you need taken care of.
An enduring power of attorney does not come into effect unless and until your doctor, and/or the person you appoint to make that determination, certifies that you no longer have the capacity to make decisions for yourself. It must be completed before you lose capacity and may lapse again if you regain capacity.
An attorney’s (not usually really a lawyer! - in this context, it means your agent) principal responsibility is to act in the best interests of the person for whom they have been entrusted. This means making decisions in the best interests of the person under their care. This means not allowing their personal interests to conflict with those of the person who is under their care. They are answerable to the Court for their actions, however, they are not answerable to curious friends and family members generally. Your affairs remain your personal, confidential business and the attorney keeps that confidence and reports to the Court if family members become concerned about their actions.
A personal directive is the document hospitals and extended care homes often ask if you have. Some people used to refer to it as a living will. It allows you to appoint someone you trust as your agent to make decisions about your personal care, health care and living arrangements when you are unable to make those decisions for yourself. Once again, having a personal directive will relieve your family of the need to make application to the Court to appoint one of them as your Guardian.
A personal directive comes into effect as soon as you become mentally incapacitated. To determine your loss of capacity, your agent needs to consult with a doctor or psychologist who has assessed you.
Legally, you can appoint more than one agent, however, that often causes difficulties if they do not quickly agree on what is to be done. You should chose an agent who is familiar with your beliefs and whom you have had discussions regarding your wishes for where you would like to live, what activities you want to take part in, what types of medical treatments you wish and whether or not you wish extraordinary measures to be taken to keep you alive in certain circumstances. Your agent is to make decisions s/he believes you would have made yourself in the circumstances.
It is important for anyone over the age of 18 in Alberta to have a Will. If you are under 18 years of age and have a child or are married, you may also consider a Will. You want to be the one who decides who gets your things and your money and who represents you to do that. If you do not have a Will, your representative and to whom your things go, is governed by Statute.
It is also crucial that you deal with your wishes for the guardians of your young children to avoid court proceedings or custody battles among your surviving relatives or friends.
Before you make your first appointment, there are several things you should think about:
- We need to know who you wish for your Personal Representative(executor). You must also name an alternate executor to your will. That way, if your first choice is unable to act, then the alternate is already named and a court appointed executor/trustee is not required.
- If you have minor children, please provide the names of a guardian/guardians to your minor children as well as their relationship to you. As with the executor, it is also helpful to name an alternate guardian/guardians. Are any of your children physically or mentally disabled? Do you pay child support?
- Do you have any former spouses or adult interdependent partners? Who are they, where are they, are you divorced/separated? We have to make special provisions to deal with these people in order to ensure that they do or do not take any part of your estate, depending on your wishes.
- Do you support any grandchildren or other family members?
- We also need to know who your beneficiaries are and their relationship to you. If you are making specific bequests (i.e. $5,000.00 to each child, my jewelry to my granddaughter, etc.) then we must know the specific details of each. The residue of your estate must have a named beneficiary. The residue of your estate consists of everything left in your estate after your specific bequests. Very often the residue of an estate is left to the spouse and if the spouse is deceased, then to the children in equal shares.
- If you do not have any children/grandchildren at the moment, but if you wish for them to get something from your estate if you should have children/grandchildren at the time of your death, please include this as well as we can put it in the Will and if there are children/grandchildren at the time of your death, they will be provided for and if not, what would have been designated to them would then just go to form the residue of the estate.
- Generally, you can leave your estate to anyone you want. There are circumstances where you are required to support those who are dependent upon you now, however, you are free to leave your goods and money to whomever you wish, including charitable organizations. I will ask you questions to determine the reasons for your wishes so that the Court will have a record of your reasoning should anyone complain that they did not receive anything from you.
- We need the complete names and addresses of the following people:
- your children
- your personal representative/executor
- your alternate executor
- your guardians
- your alternate guardians
- your beneficiaries
- If you are leaving part or all of your estate to a minor, or there may possibly be minor beneficiaries, you can set out the age that he/she/they would receive the inheritance. 18 21 25 (we don’t usually recommend 18)
- If there are any other specific items, they may be included. (I.e.: Place or manner of burial) Please list them and, if they are not able to be in the Will, I will let you know when we talk.
Probate is the Court validation of the Will of a person who has died. The Personal Representative (formerly called the Executor) will present the person’s Will to banks, insurance companies, land titles, etc to gather all your assets for distribution as you direct.
Generally, if your property is held jointly or has a named beneficiary, there may be no need to probate. However, your Personal Representative will often need the official Surrogate Court papers to prove to institutions that they have the authority to deal with your property.
Applying for Probate is a complicated matter that you are unlikely to want to do yourself. We use our best effort to make that application smooth and understandable to the Personal Representative.
We also assist those who are required to apply to the Surrogate Court for Letters of Administration because someone has died without a Will. In that case, the Wills and Succession Act governs who can administer an estate and who will inherit the property. While the application is similar to a Probate application, it is best to have counsel assist in making that application.
Dependant Adults - Guardianship and Trusteeship
Do you have an aging or sick parent, aunt, uncle who needs someone to look after their personal and/or financial needs? Do you have a child who is approaching 18 years old, but unable to care for themselves due to physical or mental incapacity?
You may need to become their Guardian and/or Trustee.
When an adult is, or becomes, mentally incapable of handling their own affairs, a loved one or close family friend often needs to step in to make decisions, dispose of or purchase property and tend to payment of their expenses. If the person did not prepare an Enduring Power of Attorney prior to becoming incapacitated, then one must apply to the Court to be appointed as their Guardian or Trustee.
A Guardian looks after the adult’s personal affairs - daily living, making and getting them to appointments, planning their activities, etc.
A Trustee looks after the adult’s finances. They ensure their bills are paid, keep track of income and prepare income tax returns.
Both are positions of great responsibility and care must be taken at all times to avoid conflict or personal gain from the adult you are caring for. Like an attorney under a Power of Attorney, you have a duty to keep the adult’s affairs confidential, but are accountable to the Court if someone believes that you do not have their best interests at heart.
If you are the parent of a mentally handicapped child, you will need the Court’s authority to continue to handle your child’s finances and personal decisions once they turn 18. While this may seem intrusive, you must remember that your child is still an adult with rights and responsibilities after they turn 18, although you will always be their parent.
A Guardianship/Trusteeship application is a lot of paperwork which delves deep into your personal life. The Court needs to be sure that the people caring for others will keep them safe and responsibly handle their finances. We will ask you a lot of questions, but those will permit us to complete the application in a timely manner without rework.
Our general and basic fee for preparing a Will is $395.00 per Will. If you also wish a Power of Attorney, an Enduring Power of Attorney and/or a Personal Directive prepared, these are an additional cost of $195.00 each document. Most other Estate services are performed on an hourly fee basis. (G.S.T. and disbursements are extra)
Please call any of our offices if you have any questions or require our services. We look forward to working with you.