1. Wills and Estates In partnership with Edmonton Public Libraries
Edmonton Community Legal Centre (780)

2. Disclaimer
The information presented during this session may have limited application to your particular situation. The lawyer or law student that are here this evening CAN provide legal information that may give you a greater understanding of how the law might apply to your own situation. The presenter here this evening CANNOT provide you with individual legal advice.

3. Estate Planning Tools Will Enduring Power of Attorney
Wills and Estates
Estate Planning Tools
Will
Enduring Power of Attorney
Personal Directive
Edmonton Community Legal Centre (780)

4. Wills Overview Limitations on Testamentary Freedom What is a Will
Wills and Estates
Wills Overview
Limitations on Testamentary Freedom
Proving a Will
Court Powers
Executor
What happens if you don’t have a Will
What is a Will
Advantages in making a Will
Wills and Succession Act
Requirements of a valid Will
Who can make a Will
Effect of Marriage and Divorce
Edmonton Community Legal Centre (780)

5. Wills and Estates
What is a Will?
Lets you make decisions that will be carried out after your death
A legal document containing a person’s wishes concerning how your estate will be distributed and who will be responsible for the distribution
Edmonton Community Legal Centre (780)

6. Wills and Estates
What is an Estate?
Land, assets, bank accounts in your name alone and insurance payable to your estate
Property not forming part of your estate includes joint property owned by spouses, and life insurance, RRSP’s, and pensions where the estate is not the named beneficiary
(key phrase: Designated Beneficiary)
Edmonton Community Legal Centre (780)

7. Wills and Succession Act (WSA)
Wills and Estates
Wills and Succession Act (WSA)
Effective February 2012
Repealed and replaced:
Wills Act
Survivorship Act
Intestate and Succession Act
Dependants Relief Act
Section 47 (pension plans and funds) of the Trustee Act
Edmonton Community Legal Centre (780)

8. Requirements of a Valid Will
Wills and Estates
Requirements of a Valid Will
Formal Will – section 15 of WSA
In writing
Signature of the testator
Testator makes or acknowledges signature in the presence of 2 witnesses present at the same time
Each of the witnesses signs the will in the presence of the testator
Witness should NOT be a beneficiary or his/her spouse
Edmonton Community Legal Centre (780)

9. Requirements of a Valid Will
Wills and Estates
Requirements of a Valid Will
Holograph Will – section 16 WSA
Wholly in the testator’s own handwriting and signed by the testator
Edmonton Community Legal Centre (780)

10. Who Can Make A Will? Section 13 of WSA 18 years of age Mental capacity
Wills and Estates
Who Can Make A Will?
Section 13 of WSA
18 years of age
Mental capacity
Under 18 if certain conditions are met
Edmonton Community Legal Centre (780)

11. Advantages of Making a Will
Wills and Estates
Advantages of Making a Will
You can exercise choice over YOUR:
Executor
Beneficiaries (charities, dependents)
Trusts for minor children (delayed gifts)
Trustee for the trusts
Guardian for minor children
Potentially less conflict amongst family
Tax and legal implications
Edmonton Community Legal Centre (780)

12. Limitations on Testamentary Freedom – Family Maintenance and Support
Wills and Estates
Limitations on Testamentary Freedom – Family Maintenance and Support
Family members can apply for support from the deceased’s estate. Family members include:
Spouse, minor children, dependent adult children
An adult child under age 22 who is a full time student
A grandchild who depends on a deceased grandparent or great grandparent
Edmonton Community Legal Centre (780)

13. Executor Locates assets Pays funeral costs, debts and taxes
Wills and Estates
Executor
Locates assets
Pays funeral costs, debts and taxes
Distributes remaining money and property according to will
Is accountable to the beneficiaries
For more complex estates, may need professional advisors-lawyers and accountants
Edmonton Community Legal Centre (780)

14. Executor Can choose any adult you wish Best suited if:
Wills and Estates
Executor
Can choose any adult you wish
Best suited if:
Is trustworthy, reliable and competent
Basic knowledge of business
Most often a family member, a beneficiary or trusted friend
Can also be a trust company
Edmonton Community Legal Centre (780)

15. Effect of Marriage and Divorce
Wills and Estates
Effect of Marriage and Divorce
Marriage or an adult interdependent agreement – section 23 of WSA no longer revokes a will
Divorce – section 25 of WSA – revokes a gift, also voids appointments to the ex spouse
Edmonton Community Legal Centre (780)

16. Example – Divorce Bill and Sue are married
Wills and Estates
Example – Divorce
Bill and Sue are married
Bill leaves his convertible to Sue and appoints her as executor
They divorce after February 1, 2012
Bill dies
Sue does NOT get the convertible and is NOT the executor
Edmonton Community Legal Centre (780)

17. Proving a Will (Probate)
Wills and Estates
Proving a Will (Probate)
After death, a will is submitted to the Surrogate Court for “probate”
A process whereby the court verifies that the will is valid and confirms the appointment of the Personal Representative (PR)
PR will need probate before dealing with property
For more complex estates , the PR may need professional advisors – lawyers, accountants
Edmonton Community Legal Centre (780)

18. Wills and Estates
Court Powers
Courts may admit outside evidence to establish testator’s intention (s.26)
Courts may validate improper wills and alterations (sections 37 and 38)
ss37 and 38 as long as testamentary intention is found. The Court may rectify mistakes by adding or deleting words
Edmonton Community Legal Centre (780)

19. What Happens Without a Will
Wills and Estates
What Happens Without a Will
An intestacy is defined in WSA as “an estate, or any part of an estate, that is not disposed of by a will”
Someone with an interest in the estate must make an application that appoints him/her as the “administrator”
Administrator has the same duties and powers as the executor
Edmonton Community Legal Centre (780)

20. What Happens to the Estate
Wills and Estates
What Happens to the Estate
Part 3 WSA Estate goes to immediate family:
Examples:
If you leave a surviving spouse or AIP and no descendants – all to the spouse/AIP – section 60
If you leave a surviving spouse or AIP and ONLY descendants from that relationship – all to the spouse/AIP – section 61
Edmonton Community Legal Centre (780)

21. Example – Spouse plus children from other relationship:
Wills and Estates
Example – Spouse plus children from other relationship:
Spouse/AIP gets “preferential share” –greater of prescribed amount ($ 150,000) or 50% of the net value of estate
Rest divided equally among the surviving children and deceased children who left surviving descendants
Edmonton Community Legal Centre (780)

22. Example - Spouse and AIP at the same time – section 62 of WSA
Wills and Estates
Example - Spouse and AIP at the same time – section 62 of WSA
William and Kate are married with two children
William leaves Kate to live with Camilla and has a child within a year (AIP formed)
William dies intestate
Kate and Camilla divide preferential share
Residue –each child takes 1/3
Edmonton Community Legal Centre (780)

23. Example - Separated Spouses- section 63 of WSA
Wills and Estates
Example - Separated Spouses- section 63 of WSA
William and Kate are separated for more than two years or have a court order settling affairs
William dies intestate
Kate is disinherited (separated spouse deemed to have predeceased)
Edmonton Community Legal Centre (780)

24. Example- Separated Spouses with Children- section 63 of WSA
Wills and Estates
Example- Separated Spouses with Children- section 63 of WSA
William and Kate are separated for more than two years (or have a court order settling affairs) with two children
William dies intestate
Kate is disinherited (separated spouse deemed to have predeceased)
Residue – each child takes 1/2
Edmonton Community Legal Centre (780)

25. Unclaimed Personal Property and Vested Property Act
Wills and Estates
Unclaimed Personal Property and Vested Property Act
If there is no family or relatives as set out in the WSA, then the Unclaimed Personal Property and the Vested Property Act comes into play.
If a person dies without a will, after 2 years from the grant of administration, the Administrator must give the Provincial Government any portion of the estate not claimed by a valid heir.
The Provincial Government must keep this property/ equivalent value for 10 years. If no one comes forward to claim it within 10 years, then the property belongs to the Government.
Edmonton Community Legal Centre (780) 25

26. Wills and Estates
Helpful Resources
Centre for Public Legal Education has a booklet on things to do and consider when creating a will:
The full version of the Wills and Succession Act can be found on the Alberta Justice & Solicitor General website:
Edmonton Community Legal Centre (780)

27. Planning For Incapacity
Wills and Estates
Planning For Incapacity
Powers of Attorney Act
Personal Directives Act
Edmonton Community Legal Centre (780)

28. Powers of Attorney Act Allows for a Power of Attorney (POA):
Wills and Estates
Powers of Attorney Act
Allows for a Power of Attorney (POA):
A document where you (the donor) authorizes someone (the attorney) to deal with property on your behalf.
One of the difficulties with the standard Power of Attorney is that it automatically ceases to have effect if the donor becomes incapacitated.
The legislation allows an attorney to continue to act notwithstanding future mental incapacity. This document is called an Enduring Power of Attorney (EPA).
Edmonton Community Legal Centre (780)

29. An Enduring Power of Attorney Must Be…
Wills and Estates
An Enduring Power of Attorney Must Be…
In writing
Dated
Signed before a witness
If donor is physically unable, then signed by another person at the donor’s direction in the presence of the donor and witness
Statement that either
the POA is to continue despite any mental incapacity or infirmity of the donor that occurs after the execution of the POA, or
the POA is to take effect only on the mental incapacity or infirmity of the donor (a “springing” enduring POA)
Edmonton Community Legal Centre (780)

30. Key Points Must have mental capacity Authority terminates:
Wills and Estates
Key Points
Must have mental capacity
Authority terminates:
On death of donor or attorney
If a trustee is appointed
If revoked by the donor who has capacity
Attorney vs. Trustee under the Adult Guardianship and Trusteeship Act
Court order takes time, more expensive, not a private affair
Court decides who will be the trustee
Edmonton Community Legal Centre (780)

31. Personal Directives Act
Wills and Estates
Personal Directives Act
Provides for a Personal Directive which is a legal document that you write in case something happens and you cannot make your own personal decisions in the future
Non-financial decisions
Example: healthcare, where to live etc.
Donor appoints an agent
Must be in writing, dated signed before a witness
Agent vs. Guardian under the Adult Guardianship and Trusteeship Act
Edmonton Community Legal Centre (780)

32. Wills and Estates
Helpful Resources
Centre for Public Legal Education has a booklet on things to do/to consider when writing a Power of Attorney:
Information and forms for Personal Directives from Service Alberta website:
Edmonton Community Legal Centre (780)

33. Edmonton Community Legal Centre
Wills and Estates
Edmonton Community Legal Centre
Offers free legal advice to low-income individuals and families on matters such as:
Estates
Small claims
Landlord-tenant disputes
Immigration law (including issues related to temporary foreign workers)
Human rights concerns
Employment law
Debt law
Income support appeals
Possible to obtain lawyer to help create Will for free or at reduced cost
Call (780) or visit
Edmonton Community Legal Centre (780)

34. Lawyer Referral Service
Wills and Estates
Lawyer Referral Service
Telephone service
Can give you the names and telephone numbers of three lawyers who can help you with your situation
No charge for first 30-minute interview – after that can choose whether to pay lawyer for further services
Call
Edmonton Community Legal Centre (780)

35. Questions Wills and Estates
Edmonton Community Legal Centre (780)