Wills & Estate Planning
Is Your Estate in Order?
An unorganized estate can end up leaving significant legal and tax burdens, and create unnecessary grief and stress for your family before and after your death. Perhaps one of the most important questions one must ask themselves as their life changes over time is, “Is My Estate in Order?”
Estate planning: puts you in control of decision-making; saves on unnecessary costs; and relieves family members of extra stress during difficult times. A Personal Document Portfolio, customized to your particular circumstance, provides you with the peace of mind to know that your affairs are in order.
Three essential documents comprise Thiessen Law Group’s Personal Document Portfolio package – an Enduring Power of Attorney, a Personal Directive and a Will.
– An Enduring Power of Attorney provides someone with the legal authority to make financial or legal decisions for you when you are no longer able to make them yourself;
– A Personal Directive assists others in providing personal care and making decisions if you no longer have the capacity to do so yourself;
– A Will provides direction and structure for your estate after your death.
Be sure to keep your Personal Document Portfolio as current as possible. Your estate plan may change with events like the acquisition of assets, changes in personal health needs, or a change in family structure such as the birth of a child or due to divorce or even the death of a loved one.
Thiessen Law Group would be happy to arrange an appointment to discuss and organize your Personal Document Portfolio.
Once you have had legal documents drafted and executed for you, the next most important consideration is – where to safely store important documents?
Here is a shortlist of the available options on where to store extra copies of important documents:
1. At home in a locked fire-proof filing cabinet or safe;
2. At the bank in a safety deposit box – ask your account representative for details;
3. At the lawyer’s office – keep an extra original signed copy on file with the lawyer who prepared and executed the documents*; or
4. At a virtual vault – the Alberta Virtual Vault provides online storage space for scanned documents.
These are four options that provide you with security and assurance that your important documents are kept safe and readily accessible by you. It is often a good idea to employ at least two or more of the options outlined above to have the greatest assurance that your documents are indeed stored safely.
*Keep in mind that all documents stored at a lawyer’s office are subject to their respective file retention policies. Typically files and related data are kept for a minimum of ten years, after which they are destroyed.
All of us are vulnerable to conditions of physical or mental incapacity. It may occur gradually (often associated with disease) or suddenly from an injury or stroke. People who are no longer competent to make important decisions may face serious long term consequences due to reckless decision-making or the inability to make a decision. If you lost the capacity to manage your financial affairs and have not prepared an Enduring Power of Attorney while competent, family members must obtain a Trusteeship Order under the Adult Guardianship and Trusteeship Act of Alberta. The court will appoint a Trustee to make decisions regarding the management of your estate and ongoing financial matters. Costs of the application are usually paid from your assets. With the preparation of a valid Enduring Power of Attorney you can ensure that a stranger does not end up making legal decisions on your behalf. This document gives you (the donor) the ability to grant another person (the attorney) full power and authority to represent you in the event of incapacity. There are two types of Enduring Power of Attorney documents – immediate and springing. An immediate appointment comes into effect upon signing. A springing appointment comes into effect after a subsequent event, such as incapacity as declared by your doctor(s). With an Enduring Power of Attorney, your attorney can sign documents to deal with matters of financial affairs, as they might arise regarding the management of your personal property. The appointments under an Enduring Power of Attorney come to an end upon your death.
While an Enduring Power of Attorney will appoint an attorney to manage your financial affairs, it does not deal with decisions of a personal nature. A Personal Directive allows you to appoint an agent to make personal care decisions, which would include any and all matters dealing with health and general welfare and extend to issues regarding accommodation, nutrition, personal hygiene and physical safety.
To put the need for a Personal Directive in perspective, consider what would happen if you were unable to make basic day-to-day choices for yourself? Who should have the authority to make decisions on your behalf? What kind of decisions should someone make on your behalf? Having an individualized Personal Directive allows you to appoint a competent and trusted person to make such decisions and will allow you define how you want your affairs handled. A Personal Directive is often referred to as a “Living Will.” An agent appointed under a Personal Directive only has the right to make decisions for you when you cannot make them yourself. Without a Personal Directive in place, an application may be required for a Guardianship Order by the Court; such a process can be costly and take up to three months.
When death occurs, it is too late to plan your estate. A Will is a legal document that determines who will control your estate after your death, identifies who will act as guardian for your children and ensures that your beneficiaries will share in your estate according to your wishes.
A Will gives you the power to simplify and speed the transition of assets, ensure that children and beneficiaries are protected and may also minimize the costs and expenses that can result if you die intestate. Key aspects to consider in your Will include: – Executor o The person you choose to carry out your wishes should be someone you know well and have previously spoken to, to ensure they will accept the responsibility. – Specific Gifts o You can give certain items or specific amounts of money to certain individuals. You may include instructions relating to the disposition of certain items such as your business or other personal property, including keepsakes, jewelry or artwork. – Residue o The funds and assets remaining after payment of debts and specific gifts can be divided in accordance with your wishes. – Guardians o If you have minor children, you should appoint a guardian of these children. You can also set up trusts to provide for their needs until adulthood, including support and education. If you die without a Will (intestate) you lose the ability to choose these appointments. Your estate will be divided according to the Intestate Succession Act with funds for children under the age of eighteen (minors) being held in trust by the Public Trustee. Should your spouse die with you, the Public Guardian becomes the legal guardian of your minor children. In order for a Will to be considered valid it must be signed and executed properly by you, be witnessed by at lease two people and be an original (not a copy). A Will is a legal document that everyone should have.
Useful information for understanding your Last Will and Testament, Enduring Power of Attorney, Personal Directive.
We suggest that you keep a copy of your Will, original Enduring Power of Attorney and original Personal Directive. Make sure it is available for you to review from time to time to make sure that they represent your current wishes. Should you decide to deliver the Enduring Power of Attorney and Personal Directive to your attorney/agent be sure to retrieve such originals if you change or amend them in the future.
You should confirm with your Executor(s), Attorney(s) and Agent(s) that they have been named and notify them along with family members where your original documents are located. The wallet card provided should help you remember the location of such documents.
The following are some events which, if they occur, may require a review and perhaps a revision to your Will:
- if you marry (remember your Will is automatically revoked and is no longer valid);
- if you divorce (remember your Will is not automatically revoked and continues in its current form regardless of the divorce);
- if you enter into a common-law relationship or form a dependent relationship with any other person (eg. a sibling, a child or a parent);
- if you have a child or grandchild after you have signed your will;
- if your Executor dies or becomes unwilling or unsuitable to act because of age, ill health, change of residence or other factors;
- if a beneficiary dies; or
- if you have had significant changes to your assets or disposed of a specific bequest.
Apart from the above noted events, we suggest that you review your Will at least every year to make sure that it meets your wishes.
If you have not included this in your Personal Document Portfolio at our offices, you should prepare a list for your Executor(s) which provides details of your assets and liabilities, such as bank accounts, investment accounts, insurance policies, business assets, credit cards and personal loans. Due to various “privacy” legislations, assets are becoming more and more difficult to find especially after you are gone.
If you have any questions, please feel free to contact our offices for further explanations and/or discussions. Thiessen Law Group would be happy to assist you in preparing your Personal Document Portfolio.
While it is important to have an estate plan in place, it is equally as important to consider re-visiting your estate plan to ensure it is current. The following list will help you think about your estate plan.
– Do you have a power of attorney and a health care proxy?
– Have you made arrangements for the potential for long-term care needs?
– Are you comfortable with your executor and trustees?
– Are all of your assets properly titled?
– Do the terms of your will still reflect your wishes for the disposition of your assets?
– Have you made proper provisions for minor children, including naming guardians and providing for their support?
– Have you considered the option of managing the inheritance of your estate by setting up a trust to assist your heirs?
– Have you considered a living trust so your assets will not go through probate?
– Has the value of your estate increased significantly?
– If you have a family business, have you started transferring business interests through a structured gifting program?
– Does your business have a succession plan and a buy-sell agreement in place?
– Is your estate planning documents organized and easy to locate?
– Have you discussed your wishes after death with your heirs to mitigate the potential for conflict after your death?
Download this form to help you gather necessary information to complete your own Personal Document Portfolio.
–> Client Information Form <–
Try to complete this ahead of your initial appointment as it will:
1) make you think about your estate plan; and
2) will allow you to make the most of your first meeting with the lawyer.