Wills & Estates
Planning for and dealing with incapacity and death can be difficult subjects, but we strive to make these discussions as comfortable as possible. There are many more considerations than simply ‘who gets what’ when we talk about Wills and Estate Planning.
Estate Planning
Anyone over the age of 18 in Alberta should have a Will, Power of Attorney and Personal Directive. These are important estate planning documents that set out a person’s wishes if they are incapacitated or die. There are numerous factors that you need to consider when determining your estate plan. Estate Planning Documents include:
Will: a document that sets out your wishes and intentions with respect to your estate after you pass
Power of Attorney: a document that appoints someone else to make financial and property decisions on your behalf if you are incapacitated
Personal Directive: a document that appoints someone else to manage your medical and health care if you are incapacitated
There are many aspects of estate planning that go beyond just assigning certain roles and determining the distribution. In addition to the basics, we will:
Review all your assets, beneficiary designations on investments and life insurance
Ensure that your entire plan, including your Will, beneficiaries, and ownership of assets match your intentions
Discuss preliminary tax considerations that you should discuss in more detail with your accountant
Adult Guardianship and Trusteeship
Individuals who do not have the opportunity to plan ahead and sign a Power of Attorney or Personal Directive may find themselves in need of a Guardianship or Trusteeship Order. There is legislation in place to step in and ensure that decisions can still be made on their behalf. These are:
Guardianship: is a Court Order that appoints an applicant to make personal and medical decisions on behalf of an adult without capacity
Trusteeship: is a Court Order that appoints an applicant to make property and financial decisions on behalf of an adult without capacity
An application to the Courts is required to be appointed as a Guardian or Trustee of an individual. If you are not able to take on these roles, you can also help a relative or friend by referring them to the Office of the Public Trustee or the Office of the Public Guardian who will step into these roles if no one else is able or willing to help.
Estates and Probate
When an individual passes away, many of their assets are held in trust and form part of their estate. To access assets that may have been frozen, often a court order is required to formally appoint a Personal Representative (Executor). Even if you do not need a Court Order formally appointing you in the role, there are still notice obligations that you must follow. We are happy to walk you through the process of managing and finalizing an estate. You may need a:
Grant of Probate: a Court Order formally appointing a Personal Representative (Executor) as named in the Will as the appropriate person to manage the deceased’s estate
Grant of Administration: a Court Order formally appointing a Personal Representative (Executor) if there was no Will in place
There are many steps that a Personal Representative must take to satisfy the requirements of this role. We will guide you through the process of preserving assets, creating an inventory of the estate assets, maintaining a record of all transaction that occur as part of the administration of the estate.
Trusts
Trusts can be an essential tool as part of your overall estate plan or can be stand-alone for many different purposes. A trust is separate legal entity where a Trustee has legal title to property for one or more beneficiaries. Examples of trusts include:
Spousal Trust: this type of trust is used within or outside of will to ensure that a spouse is provided for after the death of their partner, but also to ensure that the remainder is dealt with in a specific way.
Bare trust or a co-ownership trust: this type of trust is used to clarify, often for tax purposes, that one owner of property is the legal owner but only for a very limited purpose, and often only to assist another, such as when a parent co-signs on a mortgage for their child.
AISH or Disability Trust: this type of trust, also sometimes called a Hansen Trust is used to set aside funds for a disabled person while protecting their entitlement to government benefits, such as Assured Income for the Severely Handicapped (AISH).