Wills 101 - Why You Should Use a Lawyer to Make a Will

Who do you know who says they should have a Will but don’t know where to start?  People share “horror” stories people they know who had to deal with a family member or a friend who died without a Will and the problems that arose. 
The best starting point is to get advice from a lawyer who works with you to ensure the necessities for a valid and enforceable Will are met.  The information below is not intended to replace the advice you get from a lawyer and provides areas you need to be aware of when seeking advice.
The following are some major categories to be considered in making your Will: 

Specific Requirements in making the Will document itself.  The Alberta Wills and Succession Act provides specifics on witnesses, signing and format of the document.  For example, there must two witnesses in the same room who sign at the same time and there are restrictions on who can be a witness.  Alterations or marks on a Will can invalidate it.  There are exceptions to the specific requirements, one being a holographic Will.
 
Executor (or executrix in the feminine form) is the person who administers your estate to ensure your wishes set out in your will are carried out.  The Executor has the responsibility to: 

•  gather, preserve and maintain your assets until your estate is distributed;
  
• ensure your debts and funeral expenses are paid from your estate;
• applies to the Surrogate Court to obtain a Grant of Probate that gives them the authority to administer your estate

This is only a short list of duties and responsibilities.  You will want to select an Executor who will be able to manage these tasks.  It is also advisable to pick an alternate in case your Executor is unable to act.

Gifts, bequests, beneficiaries etc. In a nutshell, who, what and when.
 

• You decide who gets part of your estate.  These are your beneficiaries.  There may be some limitations if you have dependants.  A lawyer can advise you on complex family structures and other considerations;
  
• You decide what they get.  Examples are money gifts, a share of your whole estate, specific belongings or gifts to charity.  A lawyer can advise you on limitations, if any, on what you can give.  Also, there are some assets you own that are distributed outside of your estate, for example insurance policies with a named beneficiary; and
  
• You decide when your beneficiary receives the gift.  For example, you may want to give part of your estate to minor children when they are older, so they do not have access to it all when they turn 18 years old.
  

This is an area where a lawyer can be of great help.  Considerations are complex, and the lawyer helps you to avoid gifts that could fail if not worded correctly. 

Other considerations to name a few:

• Guardianship and trusteeship of minor children or dependant adults;
• Corporations, partnerships or other business matters; and
• Access to digital assets i.e. Facebook accounts.

Contact one of our lawyers for more information

Kelly Stewart

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