We often get asked some of the same questions and concerns from clients interested in getting their Will(s) done. These considerations come up time and time again so it’s important to discuss them to help you understand some of the basic concerns.
1. My kids are under the age of 18. Can I name them as Personal Executors?
Unfortunately, the answer is no. You can’t even make them becoming personal representatives contingent to being a certain age before they could become it (ie. If my son/daughter is 25 at the time of my death). Your kids have to be over 18 to be named in your Will as your Personal Representative because they technically must be able to consent to it and if they are under 18 they don’t have the legal capacity to do so.
2. My potential personal representative lives outside of Alberta. Can I name them?
Yes, you can but there are some concerns. If your PR is in Alberta they will be bonded automatically against errors and omissions which gives them a safety net when acting as a PR. If they are in Canada but outside of Alberta your estate should pay for bonding to ensure coverage so this is a cost that should be accounted for. In addition, if your potential PR is outside of Canada there could be potential tax implications for them which can’t truly be accounted for. That would clearly not be your intention so be very cautious.
3. I have young children – why should I name potential grandchildren as beneficiaries?
We usually get very strange looks when we suggest naming potential grandchildren as beneficiaries even though your own children are very young. As lawyers we are tasked with thinking of potential situations and one of those situations is you not revisiting your Will over a number of years or being incapable of redrafting your Will at some time in the future. We have seen clients probating wills from 40-50 years earlier where the person drafting it did not include future generations. This could cause a situation where you are deemed to die intestate (or without a will) if there are no survivors named. Out of an abundance of caution we go this extra step.
4. I have had some issues with some of my family – do I have to name them as beneficiaries?
Unfortunately, this happens – life comes at us from a series of angles and not always in a pleasant way or the way we would hope. You are absolutely free to make arrangements as you see fit but there are some pieces of legislation that you could run offside of so these need to be accounted for in making decisions. If you draft your will without being aware of these situations your plans could be overridden and you could end up with unintended beneficiaries. We can and do help clients work through these issues in the best possible manner.
Ultimately there are a number of factors to consider when drafting a Will and you can’t be and shouldn’t have to be aware of them all. This is where we can step in and help you sort through the endless pitfalls that can catch you off guard.
For more information regarding real estate law, we are Calgary’s leading legal real estate team to help you. Contact us today, 403 245 – 3500, or email us at [email protected].
