Things to Consider When Making a Will
Creating a will is one of the most important steps you can take to ensure your wishes are respected and your loved ones are taken care of after you're gone. However, for residents of Alberta, the process of drafting a will involves several considerations that can impact its validity and execution. Whether you’re planning your estate for the first time or revisiting an existing will, here are key factors to keep in mind:
What is a Will?
A will is a legally binding document that outlines how you want your assets and estate to be managed and distributed after your death. It allows you to:
Designate beneficiaries who will receive specific parts of your estate, such as property, savings, or personal possessions.
Appoint an executor, a trusted individual responsible for administering your estate and ensuring your instructions are followed.
Name a guardian for any minor children, ensuring they are cared for by someone you trust.
Include specific bequests, conditions, or wishes you want to be honored such as who will receive a family heirloom or who will look after your pet.
Having a will gives you control over your legacy, reduces stress and confusion for your loved ones, and minimizes the risk of legal disputes. Without a will, Alberta’s Wills and Succession Act will determine how your estate is distributed, which may not align with your personal wishes.
1. Legal Requirements for a Valid Will
In Alberta, there are two types of wills that are considered valid.
A Formal Will:
The will must be in writing/typed.
The testator (the person making the will) must be at least 18 years old and of sound mind. .
The will must be signed by the testator in the presence of two witnesses, who also sign the will in the testator’s presence. The witnesses must not be beneficiaries or spouses of beneficiaries.
One of the witnesses must swear/affirm an affidavit of witness to a will confirming the above criteria was met.
A Holographic Will:
Holographic wills are entirely handwritten and signed by the testator and are accepted in Alberta, but this does not apply to all Provinces in Canada.
Holographic wills are more likely to be declared invalid by the Courts as the terminology used can be incorrect, less formal, and interpreted in many different ways.
As there is no witness, these wills require an affidavit to be sworn/affirmed by someone who can verify that the will was written or signed by the testator. Best practice is have someone swear/affirm an affidavit that is not a beneficiary or a Personal Representatives/Executor.
2. Appointing an Executor
An executor is the person you choose to carry out your wishes as specified in your will. The role of the executor is critical, as they are responsible for administering the estate, paying off debts, and distributing assets to beneficiaries. When selecting an executor, consider:
Their trustworthiness and ability to handle financial matters.
Their willingness and availability to take on the role.
Whether they live in Alberta, as out-of-province executors may face additional legal and logistical hurdles.
3. Determining Guardianship for Minor Children
If you have children under 18, one of the most important aspects of your will is appointing a guardian. This decision ensures that, in the event of your passing, someone you trust will care for your children. When choosing a guardian, consider:
Their relationship with your children and compatibility with your parenting style.
Their financial situation and ability to care for your children long-term.
Their willingness to accept the responsibility.
4. Specific Bequests and Distribution of Assets
You’ll need to outline how you want your estate distributed. This includes:
Specific bequests: Items or assets you wish to leave to specific individuals (e.g., jewelry, heirlooms, or properties).
Residual estate: The remainder of your estate after debts and specific bequests are handled.
Alternate beneficiaries: In case your primary beneficiaries predecease you or are otherwise unable to inherit.
It’s vital to be clear and precise when naming beneficiaries to avoid any disputes. Also, consider the tax implications for your heirs, especially concerning large or complex assets like real estate.
5. Updating Your Will
Life circumstances often change, and your will should reflect those changes. It’s essential to update your will when:
You marry, divorce, or enter into a new partnership.
You have a child or experience the passing of a loved one.
You acquire or sell significant assets (property, businesses, investments).
Your relationships with beneficiaries or executors change.
Failing to update your will can result in complications during probate, potentially leaving loved ones without the resources or care you intended for them.
6. Protecting Against Will Contests
To ensure your wishes are honored and reduce the chances of your will being contested, consider:
Including a “no-contest clause,” which penalizes beneficiaries who challenge the will.
Discussing your plans openly with family members to minimize surprises and potential disputes.
Having your will prepared or reviewed by an estate planning professional to ensure it complies with Alberta law and meets all necessary formalities.
7. Seeking Professional Guidance
While it’s possible to draft a will on your own, there are many legal complexities that can arise, particularly if your estate is large or if you have unique circumstances (e.g., blended families, business ownership). Working with a probate and estate planning consultant can help ensure your will is drafted correctly and your wishes are carried out as intended.
Final Thoughts
Your will is a powerful document that gives you peace of mind knowing your affairs are in order and your loved ones are cared for. By considering these important factors and seeking expert advice, you can make informed decisions that reflect your values and protect your family.
If you're ready to start the process or need to review your existing will, feel free to contact me, Varinder Sahota, Wills and Estate Consultant. I can guide you through each step, ensuring your will meets all Alberta legal requirements and reflects your personal wishes.