At some point in their lives, it is not unusual for people young and old to think they are “invincible”.
For the young, death seems not even part of the life equation considering that being “young” and presumably blessed with good health is the particular high mark in a person’s life journey. The journey through the years is marked in achieving career goals, raising a family, and to search for the happy life characterized by material prosperity. For the rest of us who are not so young, the goal is to look forward to more years living in this world (i.e. think retirement and enjoyment of the blessed golden years). After all, longer lifespans of our generation are backed by solid science.
However, humans have a biological shelf life. All of us (without exception) will eventually die. And more often than not, it is often difficult to know for certain when death arrives. 2020 is a stark reminder how fragile our lives are and the continuing effect of the global pandemic in our lives.
A survey of the Lawyer’s Professional Indemnity Co. (LawPRO) found 88% of Canadians between the ages of 27 and 34 do not have a “Will, the most common reason for not having one is the fact that they are “too young” to have one and a Will is for those nearing the end of a life’s journey. For the whole of Canada, the LawPRO survey found that 56% of Canadian adults do not have a signed Will.
Legally, what happens after death?
Upon the death of a person (i.e. the person who dies is referred to as the “Decedent”), the legal entity – the Estate - comes into existence. The Estate is the totality of all properties (i.e. real properties, personal properties and less the debts and obligations) owned by the decedent. The Estate is not subject to self-management and properties do not automatically go to the decedent’s family and loved ones left in this world.
Management and distribution of the Estate may be facilitated through the terms of a Will, a legal document governed by legislation. If there is no Will, management and distribution of the Estate is made through intestate proceedings *(no Will).
Matters of Estate and how properties are to be managed and distributed are subject of the law.
In Alberta, the WILLS AND SUCCESSIONS ACT (WSA) was enacted to law on February 1, 2012. The WSA is the law that governs Wills; intestate situations and survivorship situations; dependent’s rights; and successional rights.
What happens to the Estate if a person dies without a Will?
The most common perception is that after a person dies without a Will, his or her properties (i.e. the “Estate”) will just pass on gently to the surviving spouse; children; or any other person who is left behind and related to the Decedent. This is not true. Dying intestate may be more complicated than this.
If a person dies without leaving a Will, The LAW takes over (Intestate provisions of the WSA). He or she loses control over the Estate by way of how it is be administered; how the assets are to be accounted and distributed; how a guardian and a trustee is to be instituted for the minor children for their care and for management of the minors’ inheritance; and even how to best take advantage of tax laws to maximize their use for those loved ones left behind.
Dying intestate will turn out to be potentially litigious and cumbersome at a time when the family has suffered from the death of a loved one. Almost always, dying intestate will be more expensive (i.e. legal proceedings, lawyer’s fees, and emotional costs) for the loved ones left behind. It is often the rule that relatives of a deceased who died intestate may be compelled to see professional counsel to navigate the appointment of Administrators for the Estate (i.e. advice of lawyers); guardians for the minor children and trustees for the property of minor children; and management of the Estate (i.e. advice of accountants).
Why make a Will in the first place?
A Will is any writing that confers a testamentary disposition of the Estate and designates a personal representative to administer the Estate. The Will takes effect upon the death of the person who makes it.
A Will enables a person to have his wishes fulfilled after his death. If a person dies without a Will, the Estate will be subjected to intestate rules on succession.
Having a Will ensures the appointment of your designated Personal Representative (i.e. Executor, Administrator, and/or the Manager of the Estate) and an assurance that one’s wishes (made while in complete control and while still alive) are followed. You get to decide who will benefit from the Estate; who gets what, who gets nothing, and decide on how properties are to be distributed (i.e. if there are minors, you get to decide who will manage the properties given to minor beneficiaries). In other words, the careful planning and execution of a legally effective Will can ensure that the one’s wishes (after he or she passes on) are clear and shall be followed as per the terms of the executed Will and last testament.
The person who makes a Will is called the Testator.
In Alberta, the Testator is endowed with testamentary freedom. The Testator has the sole discretion to decide on all decisions that will affect his Estate after his or her death.
The Testator may provide for the burial arrangements. The Testator can designate his or her preferred choice or even choices of the Personal Representative, the manager/administrator of the Estate. The Personal Representative is the same as the Executor and Administrator although the term of the Personal Representative is used in the WSA. He or she is the person who will be entrusted to act in accordance with the terms of the Will and how the Estate is to be managed, accounted, and eventually distributed to the named beneficiaries.
The Testator can plan ahead on how to take advantage of tax savings measures (i.e. gifts to charities; roll over provisions of the Income Tax Act). He or she can provide for the guardianship of his minor children, institute the person who will officially be responsible for their care until they reach the age of majority.
In Canada, the testator can choose who gets what and who is out and this blanket choice is his alone to make concerning his properties that he leaves behind and forming part of his Estate (i.e. in the Philippines, the Civil Code provides that the Testator can only distribute the “free portion” of his Estate in a Will since Philippine succession law mandates certain reserved portions of the Estate to certain “forced heirs” [i.e. the spouse, children, etc.] as a general rule).
The Testator can even include provisions in his Will as to when the beneficiaries can receive their share of the Estate.
One of the most practical aspects in having a valid Will is the cost of settling the Estate. It is so much cheaper to have a probate of a Will. The probate process is easier and more cost effective (i.e. compared to applications for Administration and intestate proceedings under the WSA). A probate is a process by which the Court of Queen’s Bench confirms that the last Will of deceased is legally valid and the person (Personal Representative of the Estate) applying for grant of probate has the legal authority to administer the estate.
A probate process in Alberta is a simple desk application (i.e. there are no hearings conducted before a Judge in probate applications) whereby the Executor will normally go to the Surrogate Division of the Court of Queen’s Bench; fill up the forms (i.e. $35.00) contained in the Surrogate Rules; and submit them to the Surrogate Division of the Court of Queen’s Bench. The process is pretty much streamlined and costly litigation is therefore avoided. The filing fees are reasonable and would depend on the value of the Estate. In Alberta, the filing fees for a probate substantial Estate (i.e. a $1,000,000.00 or more) will not be higher than $500. The Personal Representative can choose to fill up the forms or seek the advice of a lawyer for a nominal fee.
Let's face it, making a Will may not be the most exciting thing to do (and there may be a time you are clueless on how to start drafting one and ensuring that the same is legally valid), but by
protecting your hard earned savings, property and assets, and putting matters in order, you can look after those people who matter to you most.
Contrary to prevailing legal myths, it is more economical to seek legal advice to ensure that the Will corresponds to the rules of the WSA and to be properly advised on the provisions of the Will one desires.
Making a Will is one of the most caring things you can do for your family - ensuring that they do not have the additional pain and worry at a time when they least need it.