Start With a Checklist
- List all your assets
- List all your debts
- Children need guardians
- Choose the right executor
- Give gifts in your will
- Make a list of beneficiaries
- Remember your digital assets
- Decide on the type of will (attested or holographic)
- Online will kits, what you need to know
- Find an accredited estate lawyer
Of all the documents you sign in your lifetime, your last will and testament is arguably the most important. You’ve worked hard to build your assets such as your home. A will ensures those assets are distributed in accordance to your wishes after your death, rather than by the rules the government uses for those who die without a will.
Every adult should have a will. Think of a will as your final gift to those you love. While each one is unique, there are many basic elements that can be found in all well-crafted wills. Here’s a checklist of what an estate lawyer will need to know so they can create a will for you that reflects your desires.
As people mature they tend to develop diverse financial holdings, such as investments, property, securities and money in the bank. You don’t need to specify in the will the dollar value of each one but you do need to provide a complete overview of your worldly possessions.
Many of us have mortgages that will take decades to pay off. If you were to suddenly die, some of your estate’s value will have to cover those payments (unless you have mortgage insurance), along with any other debts you have left behind. The duties of your executor include completing your final tax return and ensuring that all money owing is paid out before assets are distributed to beneficiaries. While the debts of a parent are not passed along to the children, creditors can make a claim on the estate to get their money. If you have a joint or co-signed account with the deceased, you are responsible to pay the debt in full, just as you would be if they were still alive.
Anyone under 18 is considered a minor. If their parents were to die suddenly, the custodial guardian named in a will would step in to assume all the childrearing duties, including education, medical care and social activities. In some situations, it makes sense to appoint two guardians, with a property guardian looking after any real estate assets while making investments on behalf of the child.
Many people name family members as guardians, but friends or other people you trust can also be named. Keep in mind that just as there are no perfect parents, there are no perfect guardians. When deciding on a guardian, look for someone who is comfortable with children. Perhaps they don’t have any offspring of their own so they must be willing to change their lifestyle to accommodate the needs and demands of the child. It helps if they live in the same area, as moving a child away from their hometown will increase the stress they will already be under.
The age of the guardian is important, as you want someone who is mature but at the same time young and healthy enough to take on the duties of raising a child. Financial stability should be a key factor in your decision, as you want to ensure that your child’s needs are taken care of down the road. Though your will may direct that funding is to be given to the guardian for expenses, choosing someone who has the financial means to assume responsibility for your child can offer an extra sense of security.
Think about the attitudes and values you are trying to instill in your children. You want to find a custodial guardian who lives by similar standards as yours, to ensure your children are brought up in a manner in which you approve.
For any guardian roles, be sure to discuss the issue thoroughly with the people you have in mind before appointing them in your will. It can be hoped that their services will never be required, but ensure they are comfortable taking on those duties if needed.
One final point: review your guardianship appointments on a regular basis. A person who seemed like an ideal choice 10 years ago may be unfit or unwilling to assume that role now.
The executor (also called an estate trustee) is a key player in settling your estate. It is their job to ensure that your wishes as stated in the will are fulfilled when it comes to distributing your assets. Before that can happen, they have to complete many administrative tasks, such as closing your bank accounts, paying your taxes and debts, contacting the appropriate government ministries to notify them of your death, and dealing with your bank and other financial institutions you were involved with.
When deciding on an executor, look for someone you trust. If they need help with the financial side of your estate there are people they can hire for those tasks. And it is best to choose someone who lives in Canada, or better yet, your own province, as estate rules vary depending on where you live.
When people die, they often designate that a certain person or organization is to be given property or money. Examples would be leaving money to a local hospital or church, or maybe your valuable coin collection to a favourite nephew. You can also designate the gift of real property, such as a house or condo.
If you gift money to a registered charity through your will, your estate will receive a tax credit, reducing the amount owing on your final income tax return.
If you have specific gifts designated in your will, they will be distributed after your debts are paid. After that is done, the remainder or residue of your estate may be distributed to your beneficiaries.
Beneficiaries are usually children, nieces, nephews, etc., but it could also be those outside the family. You need to provide their full legal names and birth dates, especially with young children who are dependent on you for support. In that case, there has to be guardianship provisions in the will to ensure their care is addressed.
Many people have phrasing in their wills along the lines of, “The residue of my estate is to be divided between my three children.” This breaks your assets into shares, allowing people to easily determine what they will receive.
If you die without a will in Alberta, the Wills and Succession Act sets out how and to whom the assets are to be transferred. For example, If you are married and have children who are also the children of your surviving spouse, that spouse is entitled to receive your entire estate. The Act does not consider the needs of each particular family and some unfair situations may result.
Digital assets are any content stored on a computer, website or on the cloud. They include Bitcoin or other cryptocurrencies, along with frequent-flyer or store reward programs that could have substantial worth. Along with providing a listing of your digital assets, be sure to make up a list of passwords and usernames for any digital account, though this latter document should be given to the executor separately and not included in the will.
Wills fall into two groupings, attested or holographic. Most attested wills are typed or prepared on a computer, then signed by the testator, the subject of the will. In addition, two witnesses must also sign their names at the bottom of the last page, swearing that they have no reason to believe that the testator is not capable of making the will. Alberta introduced legislative changes to allow for virtual signing that expires in August 2022.
Holograph wills are less formal. They are handwritten by the testator, and must be signed and dated and do not have to be witnessed. Although these may be simple to create, there is a good chance they will not provide the level of detail and professionalism a formal will drawn up by an estate lawyer will provide.
Online will kits are inexpensive and can be completed in a short period of time from the comfort of your own home, but they have significant drawbacks when compared to a traditional will. The biggest problem is that people will not know if these kits are covering all the legal issues that govern estate planning. Estate lawyers regularly take courses to keep abreast of new developments in the law, which may not be reflected in the fill-in-the blank forms in online kits.
Another disadvantage with online will kits is that they may not work for people who are part of a blended family or those who have children with different spouses. As we grow older, our lives become more complicated and a one-size-fits-all will kit may not reflect that.
Saving a few hundred dollars on a simplified will kit cannot be compared to the sense of security and confidence you will have when a lawyer helps you draft a regular will.
There are numerous advantages for dealing with a lawyer when drafting a will. If legal requirements are ignored or terms of the will are ambiguous, that may result in court challenges to your will, causing stress and tension for your loved ones after your death.
Lawyers can also suggest how to minimize the amount of money to be paid in probate fees upon your death and ways to reduce the amount of taxes paid by your loved ones on the estate.
Drawing up a will is a key step in ensuring your family’s financial security. Once you have completed this checklist, an estate lawyer can craft a will that reflects your wishes, while meeting all legal guidelines.