There are three ways your estate is passed along after you die. The first way is joint tenancy.
This means that anything you own that is jointly owned with someone else will go directly to them with no immediate tax consequences or question of ownership. Things that are commonly owned are homes and bank accounts. Less commonly are investments, items of value such as art or vehicles. More single people are setting up joint bank accounts, and sole older parents are adding children to their house as title owners.
The second way your things get distributed is to a beneficiary. Assets passed this way are life insurance and RRSPs as well as tax-free savings accounts. When you sign up for life insurance, you designate a beneficiary. You do the same with RRSPs. There are tax consequences to the taxpayer who dies, on the transfer of RRSPs to beneficiaries. RRSPs are transferred to the beneficiaries in full, with no tax withheld and no tax consequences to the receiver, until the beneficiary withdraws them, at which time taxes will be withheld on the withdrawal. The final personal tax return of the deceased will show tax due on the deemed withdrawal of the transferred RRSPs and those taxes are then due to be paid by the estate.
The third way your things that are left to others after the previous two ways of distribution is based on your will. This is why a will is so important. If you own nothing jointly, have nothing to pass to someone as a direct beneficiary, the rest becomes your estate. Your estate is distributed per the directions in your will. If you don't have a will, your dependents will have to apply to the court for a portion of your estate. It is completely up to the court's discretion as to how the estate is divided. Anybody can petition the courts for a part of your estate, not just family. This could be a horrible turn of events, leading to incredible heartache, betrayal, and a lifetime of regret.
A will is a legal statement of a person's last wishes about how to divide his or her property upon their death. This property is known as the estate. A will does not take effect until you die. In every province in Canada, a will must be in writing. As of now, video wills are not recognized by the courts to be legal.
Three Types of Wills
A will may be drawn up by a lawyer, or completed by you in a special template or form. This will is valid in Alberta and requires two witnesses to sign. Neither can be a beneficiary or spouse of a beneficiary.
The third type includes wills that are completely handwritten. This is called a Holographic Will and is legal in Alberta, Manitoba, and Saskatchewan, but not in other provinces in Canada. These do not require any witnesses.
Anyone over the age of 18 can make a will and preparing a will lets your wishes be followed after your death. Anyone with children should have a will and assign a guardian for your children.
Single people should have a will. Often single people own property and have assets. If their wishes are not written down, family and friends can petition the court for their assets.
When to Make a Will
A will should be made AND revised when there are any major changes in one's life. Marriages, divorces, births, career changes and more are reasons. Having a will is necessary, but one that is 25 years old, made before spouse and children isn't going to be of much use. Life changes, so do your wishes.
Storing your will is another decision not to be taken lightly. Alberta does not have a will registry so having copies is important. Your family and executor/trix should know of the contents and even have a copy. You may keep a copy with your lawyer, but make sure the family knows who and where that is. It may be many years after writing a will that it is needed and if it is not updated regularly, legal offices can close or move, and the family may have no idea where to find it. Also, copies can be stored in a safety deposit or fire safe box. The most important thing is that there is at least one copy, should something happen to the original.
Knowing what to put in your will is a completely different matter. The wording must be clear and precise to ensure that your wishes are understood correctly. Some knowledge of what happens to your estate may make it easier to do your will. The taxation of the estate and your belongings after death may also help with some decisions when making your will. If you have complex issues, such as international matters or trusts, or are in the process of getting divorced or separated, it may be in your best interest to have a lawyer help you with your will.
One of the most important decisions when making your will is to choose who will be executor/trix. This is not a decision to make lightly and without considerable consideration. If you choose a family member or close friend, remember that they will be responsible for these duties as well as a grieving your loss. Choosing a professional or someone outside the family also deserves consideration.
What if I Don't Have A Will?
If you die without a Will, or it can't be found, you are considered to have died 'Intestate.' Your assets and belongings that do not have a direct beneficiary, such as life insurance or RRSPs now become part of your estate.
Since there is no will, you didn't appoint an executor to take care of your estate or pay the debts and taxes. Your estate will be frozen, and no money can be accessed from bank accounts, cars, property, or collections.
A will identifies an executor to take care of the estate. With no will, family members must apply to the courts to become an administrator, or if nobody steps forward, the court will appoint an administrator.
An administrator, similar to an executor, is financially responsible for all debts, taxes and probate fees to be paid in full before an estate is released and the assets can be sold or accessed. Sometimes, this can be too little too late. Administrators have gone bankrupt personally because of high debt estates. If there is anything left of the estate after all taxes have been paid and it has been cleared to distribute, it is divided between heirs, and the courts will have the final decision on that division.
Can I Make My Own Will?
One of the most common reasons people don't have a will is because they think only a lawyer can do it for them. Anybody can make a will.
Things to Remember When Making a Will
Make sure the witness or witnesses are not beneficiaries spouses of beneficiaries. If they witness your will, their gift is null and void as they may have been seen as influencing the writing of the will. Also, make sure the witnesses can be found when needed to make an affidavit that they were witnesses for your probate application.
Be clear and direct in your wishes. If you want something to go to someone specific, make it clear. If you are leaving someone out of your will for a reason, make it clear so they can't dispute it. Make a no-contest clause if you fear people will dispute your wishes. You may be gone and not have to worry about the backlash your will may cause, but for your family and friends sakes, be clear in your wishes.
Having copies of a completed will is essential. Make sure somebody knows where the original is, and get a copy to your executor.
Update your will as often as needed. Then make copies of the updated will. Destroy the old will and destroy the copies of the old will.
The probate process is set up to make sure that the will found is the most recent will made. The longer this process takes, the smaller your estate may be when it is finally ready to be distributed.
Choosing an Executor/trix
An executor is someone chosen in a will to carry out the financial and organization of one's estate. They will be the contact for the government, banks, courts, and beneficiaries. A beneficiary of your will who is executor is not entitled to an executor fee. This is normally up to 25% of the value of the estate.
After making this difficult decision, it is important to meet with the person chosen, ask them if they would take on this position and most importantly, make sure they understand the duties involved with this position. Naming an alternative executor is a wise decision and can make sure the estate isn't tied up in the courts until a new administrator is appointed.
After a will has been located and the executor has been notified, their job begins. Only the executor has the power to deal with the affairs of the deceased.
Decide what will happen to your children when you pass. Failing to plan will only make the decisions of the courts more difficult if family members decide to battle it out for custody. Your wishes may never come to be because you didn't make them known in writing.
Your children's portion of your estate can be held in trust and managed by a trustee of your choice named in your Will. Your chosen guardian will manage their care. The guardian and the trustee do not have to be the same person.
Update Your Will
There are two things worse than not having a will. Not having a copy of your will and not having your will updated regularly. If your Will is 20 years old, you may as well not have a Will at all. Everybody goes through big life changes. We strive to accumulate, and every change needs to be reflected in our estate planning.
A living will is just as important or maybe more so than the actual will. If you are injured, in a coma, unconscious for any amount of time, this prepared document tells your family and doctors your wishes for end-of-life procedures.