Why having a legal will is essential? Protect your family's future with this guide

^{By Litco Law Staff | 771 words | Reading Time: 4 minutes | Date: 2023/04/20}

If you die without a Will, this is known as Intestacy, or dying intestate. The task now falls to the Courts to determine what to do with your estate. With assets being tied up in the courts, the process can be lengthy and expensive for your family. In such cases, a Probate lawyer can help family members apply for a Grant of Administration, which allows the Court to appoint an Administrators to distribute the estate of the deceased. Each province has its own laws regarding eligibility for an Administrator.  The law in Alberta has rules about who may be appointed as Administrator and provides a list of who is eligible in order of preference:

• Spouses or partners;   
• Children;   
• Grandchildren;   
• Great-grandchildren;   
• Parents;   
• Siblings;   
• Nieces or nephews
• Next of kin  
• A person with an interest in the estate because of a relationship with the deceased;   
• A claimant against the estate;   
• The Government of Alberta.   

All matters related to your estate are effectively paused until an Administrator is selected. Once permission to distribute the estate has been granted by the Courts to the Administrator, Each province’s Wills and Succession Act  will determine who can inherit your estate. It is assumed, from a legal standpoint, that you would have left the estate to your family.

Intestacy – Dying without a will; when the deceased passes without a will, he or she is said to have died intestate, and the courts get to decide who your beneficiaries are and how your assets will be divided.

Dying intestate can also significantly impact your loved ones beyond finances, especially for those with children who are minors. Let’s say you and your spouse die unexpectedly without a Will in place, leaving your two young children behind; it will be left up to the courts to decide who will look after your children. A final decision could take weeks or even months. A properly written Will is the cornerstone of your estate plan and the most important step in protecting your family.

What Happens if I Die in Debt?

The Administrator must pay off your debts using the assets in the estate before any funds can be released; whatever assets are left are typically sold and the money is given to the beneficiaries. (check with an LIT for any Insolvency tips or info on dying with debt) In general, administering an estate without a Will requires a lot more legal work and ends up being much more costly – a cost which comes out of your estate, meaning less money goes to your beneficiaries.

What is the process for writing my Will and how long will it take?

To get started, you will want to gather the following information.

• Family Information – this includes things like your marital status, children and their ages, and your occupation.
• Personal Representatives and Guardians – this is where you will include any persons you wish to appoint for these roles.
• Beneficiaries – this is where you specify how you want your estate distributed, for example:
  • Do you want everything to go to your spouse, children, or someone else?
  • Are there any special gifts or legacy items that you want to delegate?
  • If applicable, how much of your estate will go to paying the appointed guardian(s) for looking after your children or dependents?
  • Would you like to make arrangements in your Will for a pet?
• Financial – this is where you will list any property you have, savings accounts, debts, loans, all bank accounts, pension plans, investments, etc.
• Liabilities – this is where you will state whether you are insured, if you have a safety deposit box, and any requests you may have for funeral arrangements.
• Directives – if you want an Enduring Power of Attorney or Personal Directive, this is where you will include the contact information of the people you have chosen for those roles; a space is also included here for any wishes you may have for organ donation.

This process may be emotional and it will require some time and consideration.  It is such an important step, given the rules around Intestacy described above and toll that it can take on your loved ones.  You do not need to navigate this on your own.  The Wills and Estates team at Litco Law can walk with you through next steps and support you through the legal process.

Dying is a very uncomfortable topic we do not like to discuss our own death or the death of our loved ones and the conversation around having a Will is equally difficult. If you are unsure of where to start, or how to have the conversation with a loved one the best thing you can do is reach out to the legal team at Litco Law and start the conversation.