Wills & Estate Planning FAQs (Frequently-Asked Questions)
Will - Updating Will - Invalid or No Will - Power of Attorney - Personal Directive
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What makes a will legally valid in Alberta?
To be valid, a will must be in writing and signed at the end by the testator in the presence of two witnesses who also sign the document. The testator must be at least 18 years old and possess the mental capacity to understand the nature and effect of the document [more on personalized will].
Can I write my own will by hand?
Yes, Alberta recognizes "holograph wills," which are documents written entirely in your own handwriting and signed by you without witnesses. However, these are often risky as they may lack clarity or fail to meet technical legal requirements, leading to potential litigation [more on holographic wills].
What happens if I die without a will (Intestacy)?
If you die without a will, your estate is distributed according to the Wills and Succession Act formula, which usually prioritizes a spouse or adult interdependent partner. If you have children from a different relationship, the distribution becomes more complex and may not align with your personal wishes [more on intestacy].
Does a will avoid probate?
No, in Alberta, a will does not avoid probate; rather, it typically serves as the primary document that must be submitted to the Court of King's Bench to obtain a Grant of Probate. This formal court process is generally required to validate the executor’s authority and facilitate the legal transfer of titled assets, such as real estate or significant bank accounts, to the intended beneficiaries.
Can I name a guardian for my kids in my will?
Yes, in Alberta, you can name a guardian for your minor children in your will under the Minors' Property Act and the Family Law Act. This appointment grants the individual legal authority to care for your children if both parents pass away, though it is subject to court confirmation if the appointment is ever challenged as not being in the child's best interests [more on guardians].
Who can I name as an Executor?
You can name any adult who is mentally competent, though it is usually recommended to choose someone living in Canada to avoid tax complications and administrative hurdles. You should also name an alternate executor in case your primary choice is unwilling or unable to act [more on executors].
Who is an Adult Interdependent Partner (AIP)?
In Alberta, an AIP is someone you have lived with in a relationship of interdependence for at least three years, or less if there is a child of the relationship or a signed agreement. AIPs are granted inheritance rights substantially similar to those of legally married spouses under the Wills and Succession Act, ensuring they are entitled to a preferential share of an intestate estate and the right to challenge a will if they have not been adequately provided for [more on estate planning for AIPs].
Does a will cover my life insurance or RRSPs?
Typically, assets with a designated beneficiary (like life insurance, RRSPs, or TFSAs) pass directly to that beneficiary outside of the estate. If you name your "estate" as the beneficiary, then those assets will be governed by the instructions in your will.
Can I disinherit my spouse or children?
Alberta law requires you to make "adequate provision" for your spouse, AIP, and dependent children. If you fail to do so, those individuals may apply to the court for a larger share of your estate under the Wills and Succession Act.
What is probate?
Probate is a court process that confirms a will is valid and gives the executor the legal authority to manage the deceased’s assets. In Alberta, many financial institutions and the Land Titles Office require a Grant of Probate before they will release or transfer significant assets [more on probate].
How often should I update my will?
It is wise to review your will every three to five years or after major life events like marriage, divorce, the birth of a child, or the death of a beneficiary. Note that in Alberta, marriage no longer automatically revokes an existing will [more on updating will].
Does divorce affect my will?
If you divorce or stay separated from an AIP for more than a year, any gift to that former partner in your will is generally revoked unless the will states otherwise. However, the rest of the will remains valid, so an update is strongly recommended [more on updating will on divorce].
Does moving to another province or another country invalidate my will?
Moving to another province or country does not automatically invalidate a will that was validly executed in Alberta, as most jurisdictions recognize wills that comply with the laws where they were originally signed. However, since succession laws and tax implications vary significantly across borders, it is essential to have your will reviewed by legal counsel in your new location to ensure it remains effective and achieves your intended goals.
Can I change my will by crossing things out?
No, simply crossing things out on an existing will is not a legally effective way to make changes in Alberta and may lead to the altered sections being declared invalid. To ensure your modifications are legally binding, you must either execute a formal codicil or draft an entirely new will that complies with the signing and witnessing requirements of the Wills and Succession Act.
What is a Power of Attorney and do I need one?
While a will handles your affairs after death, a Power of Attorney appoints someone to manage your financial affairs while you are still alive but mentally incapacitated. It is a critical component of a complete estate plan in Alberta [more on powers of attorney].
What is a Personal Directive?
A Personal Directive (often called a "living will") allows you to name an agent to make non-financial, personal decisions for you, such as healthcare or living arrangements. This document only takes effect if you lose the capacity to make these decisions yourself [more on personal directives].
Can I leave a gift to a charity in my will?
Yes, you can leave a specific dollar amount or a percentage of your "residue" (what is left after debts and taxes) to any registered charity. These gifts can provide significant tax credits for your estate, offsetting taxes owing on other assets.
What are the costs associated with probate in Alberta?
Alberta has some of the lowest probate fees in Canada, with a maximum government filing fee of $525 for estates over $250,000. However, you must also account for legal fees and the time required for the executor to complete the administration [more on costs of probate].
Where should I keep my original will?
You should keep your original will in a safe, fireproof place where your executor can easily find it, such as a home safe or a lawyer's office. You should not keep it in a safety deposit box at a bank, as banks often require probate just to grant access to the box.
Achieving the desired results from your will and other estate planning documents comes from careful consideration of the interplay between the law and the wording of the legal documentation that is drafted to facilitate those objective goals. For knowledgeable legal counsel for wills, trusts, powers of attorney, personal directives and other estate planning documents, contact our law firm today at 403-400-4092 or Chris@NeufeldLegal.com to schedule an initial consultation.
IMPORTANT NOTE: This website is designed for general informational purposes. The site is not designed to answer specific questions about your individual situation or entitlement. Do not rely upon the information provided on this website as legal advice in respect of your individual situation nor use it as substitute for individual legal advice. If you want specific legal advice, you need to engage a lawyer under established legal engagement procedures that have been specifically agreed to by that lawyer.
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