It’s imperative to build a detailed estate plan to protect your property, provide for your future generations and maintain your peace of mind. There are three main legal documents involved in estate planning: Your Personal Directive, Power of Attorney and Will.
When preparing any legal document, it’s important to consult with a lawyer. Losing a family member is a heartbreaking and stressful process, and ensuring your estate is in order can save your family money and distress in the future.
A Personal Directive is a legal document that enables you to appoint a person to make your health and personal care decisions on your behalf when you are no longer able to do so for yourself. In a Personal Directive, you can provide instructions on what type of care you would or would not want to receive. The person you choose to make these decisions for you should be someone you trust, who knows how you would want to be treated, shares your values and is comfortable acting in this role.
Without a Personal Directive, your family may be required to make an application to the Court to be appointed as your guardian in the event that you become incapacitated. This process can be time consuming, costly and can result in disagreements and tension between family members, even under normal circumstances.
Power of Attorney
A Power of Attorney is a legal document that enables you to appoint a person to manage your property and financial affairs on your behalf. This document can be prepared to take effect immediately or upon the occurrence of a specified event, such as the loss of mental capacity. A Power of Attorney specifies how and for whom your finances are used.
Without a Power of Attorney, you will not have the opportunity to choose who to trust in this important role. Once again, your family may be required to make an application to the Court for an Order to be granted with the legal authority to manage your property and finances. As discussed above, this will result in additional expenses and delays and will be one more hurdle in an already difficult time.
A Will is a written document that details how you would like your property to be distributed following your death and who you would entrust to implement your instructions. A Will can contemplate important matters such as who you would name as a guardian to care for any minor children or other dependents that you may leave behind and who would manage their share of your estate until they reach the age of majority. Further, you can waive certain requirements that would otherwise be a burden on your executor, such as the requirement to post a bond with the Court.
If you do not have a Will in place when you pass away, there is legislation in Alberta that will determine who is entitled to apply to be your Personal Representative. A Personal Representative appointed by the court has limited discretion in administering your estate and must do so without the benefit of your guidance. To ensure that your true intentions are reflected in a legally valid Will, consultation with a lawyer is strongly advised.
In order for a formal Will to be valid, it must:
- Be in writing and signed by you
- Signed in the presence of 2 witnesses, as confirmed by their signatures
Holographic wills are signed handwritten wills, and can also be valid legal documents in Alberta. A legal holograph must:
- Be written in your handwriting and signed by you
- It does not have to be signed by witnesses
We do not recommend preparing a holograph will. They can be difficult to enforce, as they’re often unprepared by a lawyer which means they aren’t always complete and comprehensible.