Things to Consider when Making a Will

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic discusses some things to consider when making a will.

An executor or personal representative appointed in your will is the person who administers your estate. An alternate executor should also be appointed in case the first person you chose is unable or unwilling to act. It is best to appoint an Alberta resident because an out-of-province executor may be required to post a bond or security with the Court to administer your estate. If there is no suitable person available, you can name a trust company as your executor.

In planning your will, make a list all of your assets and estimate the value of your property. Consider whether the value will increase or decrease over time because your property is considered to transfer on the date of your death. For example, if you leave your new luxury car to one child and an investment to another child, the value of those assets may have changed drastically by the time of your death. Your children would receive different amounts when you may have wanted to gift each child equally in your total estate. You may want to leave them a certain amount of money rather than specifying what major assets they will receive. You may also want to specify who gets which antique or family heirloom instead of leaving it for the beneficiaries to decide. All other property, including any future property you may acquire, can be distributed by inserting the statement “residue of my estate.”

Alternate beneficiaries should also be named in your will in case a beneficiary dies before you. If you do not name an alternate beneficiary, the gift to that beneficiary will return to the estate unless the spouse and children of the beneficiary take that gift. Specify an alternative beneficiary to avoid a gift going to unintended beneficiaries. For example, you may want to say, “I give my cottage to my brother, John Doe, but if he does not survive me, then to my sister, Mary Doe”. If you do not name an alternate beneficiary, John’s wife and children would inherit the cottage when you would have preferred Mary to have it.

A guardian should be appointed in your will to care for your minor children. Discuss the appointment with the guardian to make sure he or she agrees to act as guardian of your children.

Make adequate provisions for all of your dependents in your will, otherwise they can make a claim against your estate under the Dependants Relief Act or the Matrimonial Property Act. The Court can alter your will to provide financial support to your dependents if required. Under the Dependants Relief Act, a dependent includes:

  • Your legally married spouse;
  • Any child or adopted child under the age of 18 years; and
  • Any adult child or adopted child who cannot earn a living because of mental or physical disability.
  • Your “Adult Interdependent Partner” as defined by the Adult Interdependent Relationships Act.

Under the Adult Interdependent Relationships Act, two people can become Adult Interdependent Partners where:

  1. They have lived in a relationship of interdependence:
    1. for a continuous period of not less than 3 years, or
    2. of some permanence, if there is a child of the relationship by birth or adoption, or
  2. They have entered into an Adult Interdependent Partner Agreement as set out in section 7 of the Act.

You are not required to provide reasons for not leaving property to certain family members or dependents. However, it may assist the Court in deciding whether it should change the distribution of your property stated in your will. For example, you may have already given that person generous gifts during your lifetime and you and your spouse have agreed not to leave any more property to that person in your wills.

Some property cannot be disposed of by your will. For example, if you own land or your home in title as a joint tenant with another person, that property transfers automatically to the other joint tenant when one person dies. This is different than the title of property or land held as tenants-in-common. This type of title does not have a right of survivorship to the other owner and you may leave your share in the property to anyone you choose. A search at the Land Titles Office will tell you how title of jointly owned property is registered.

The Dower Act provides for a surviving spouse to continue to live in the family home until their death, if they wish. It does not matter how the title is registered. Title may be registered in the sole name of the deceased spouse or in the name of both the spouses. If you want your spouse to give up Dower Rights in return for some other benefit under the will, you should both speak to a lawyer to make sure the agreement is valid and enforceable in law.

Always make a new will when you know that there is a major change of circumstances in your life. If you get married, that marriage will automatically revoke your will. Your will is not revoked automatically if you separate or divorce. Minor amendments or changes to your will can be made by a codicil (this means an addition or supplement that explains, modifies or revoke a will or part of one). This is made in addition to a will. The codicil must be signed and witnessed in the same way that you originally signed the will for it to be valid.