Legal Things

Posted by Amanda Ku on Sunday, February 2nd, 2020 at 3:57pm

Why you should have a Will?

Calgary Real Estate Definition of Wills & Estates

 

Estate: Is all the property and money owned by an individual when they die. 

Will: Is a legal document prepared by a person prior to their death that outlines how their Estate will be given out after their death. It is important to have a lawyer prepare a will to avoid legal problems. 

Intestate: A term used for a person who dies without a valid Will. Contact a lawyer or public trustee for instructions on how to handle this situation.

Holograph Will: A handwritten will signed by the person making the Will. A witness is not required to sign a Holograph Will; however, it is a good idea to have two independent people witness the signature. This type of Will may not be legal in all provinces.

Executor: Is the person or persons named in a will to deal with any financial matters related to the person who has died and to distribute the estate.

Beneficiary: Is the person or organization named in a will who will receive the assets of the estate. The executor and the beneficiary may be the same person.

Probate:

  • Probate is the legal process that takes place after someone's death
  • It involves proving that the deceased's Will is valid and dividing the property as instructed by the will.
  • By planning ahead, it may be possible to avoid probate.
  • Property that is held jointly with a spouse or other person does not need to be probated.
  • Before any transfer of assets, it is a good idea to get legal advice.
  • There may be costs and tax to pay.
  • Probate may not be necessary if the estate is small.
  • Probate is required when a house or investment is in the deceased's name only.
  • A will needs to be probated if any individual such as a financial institution or the land titles office asks for it to be probated. 
  • Applications for probate are usually made by a lawyer however a lawyer is not required.
  • Probate forms in a package are usually made by a lawyer however a lawyer is not required.
  • Probate forms in a package are usually made by a lawyer, however, a lawyer is not required.
  • Probate forms in a package called Surrogate Court Rules can be ordered from the Queens Printer at www.qp.alberta.ca or by dialling 403.310.0000
  • The assistant at the court of Queen's Bench (403.297.7281) will give limited information to anybody who wishes to apply for probate without a lawyer.

Joint Land Titles:

  • It is a good idea to have both husband and wife listed on a land title to eliminate the need for probate.
  • Lawyers DO NOT recommend that children or grandchildren be put on a land title.
  • By adding another person to a land title, that person receives an equal share in the property and the property cannot be sold without that individual's permission.

 

Steps to follow when someone dies:

Pre-arrangements:

  • Will: The executor needs to locate a copy. Should be kept in an accessible/safe location
  • Funeral: A pre-arranged funeral can save money and stress. For a low-cost alternative, try Calgary Co-operative Memorial Society,  403.248.2044
  • Documents: Executor needs a list of bank accounts, credit cards, investments, insurance, and organizations and people to be notified.

Federal Government (specifically for seniors):

  • Notify Service Canada (Income Security Programs)
  • Old Age Security & Canada Pension: Cancel cheques. Social Insurance Number is required. Estate is entitled to cheque received in the month of death.
  • Lump-Sum Death Benefit: Paid to the estate of contributors to Canada Pension. Application form usually provided by the funeral home.
  • Survivor Benefit: The amount depends on what the deceased paid into Canada Pension. Application form usually provided by the funeral home.
  • Allowance: For widows/widowers between the ages of 60-65, depending on income.
  • Guaranteed Income Supplement: For widows/widowers over 65, depending on income. Notify CRA or Veterans Affairs Canada
  • For GST rebate & info on submitting a final tax return.
  • Info on obtaining a Clearance Certificate after the final tax has been accepted.

 Provincial Government:

  • Notify Alberta Seniors:
    • Senior's Financial Assistance Program: Paid to low-income individuals over 65. Notify with deceased's personal health number
    • Special Needs Assistance: Help with funeral expenses may be available for surviving senior's spouse who is eligible for Alberta Seniors Benefit
  • Notify Alberta Health Care
    • Alberta Health Care should notify Alberta Blue Cross
  • Land Titles
    • To transfer the title on Alberta Real Estate
  • Public Trustee
    • May need to consult the public trustee office if the deceased died without a will.

 Miscellaneous:

  • Financial: Notify banks, credit cards, investment dealers
  • Insurance: Notify car, home, vehicle, and life insurers
  • Vehicle Registration: Contact private registry agent
  • Utilities: Notify phone, cable, electricity, and natural gas
  • Death Certificate: The funeral director's certificate should be sufficient for most purposes. If not, order one from any private registry agent. 
  • Support/Counselling: Grief counselling is available from Alberta Health Services, Grief Support at 403.955.8011.

 

Personal and Financial Decision Making Options

There are a number of options available when a person does not, or can not handle their financial or personal affairs.

Power of Attorney

  • This document allows individuals to give power to someone else to act on their behalf.
  • Usually related to financial matters (i.e. paying their bills).
  • In effect only while the individual is alive and able to make their own decisions.
  • It is best if the document is prepared by a lawyer.

Enduring Power of Attorney:

  • This document allows seniors to appoint someone else to make financial decisions if they become unable to make decisions due to illness or accident.
  • This document typically comes into effect after the individual becomes unable to manage their finances.
  • This legal document ends at the time of death of the individual.
  • Sometimes the document can also come into effect immediately after it is signed or if the senior is ill.
  • A lawyer is recommended when signing this document.
  • There are no guidelines or forms for writing this document.

Personal directive:

  • This document allows individuals to appoint someone else to make personal decisions on their behalf.
  • It comes into effect when the person is unable to make their own decisions due to illness or accident.
  • Decision making may include medical treatment, accommodation, and other personal care requirements.
  • This legal document ends on the death of the represented individual.
  • This form along with the instructions is found on www.seniors.alberta.ca/opg/personaldirectives/
  • This document is typically signed at the same time as the Enduring Power of Attorney.
  • The Kirby Centre assists adults to write a personal directive at no charge (403.705.3230)

Guardianship:

  • A guardian is appointed by the court to act on behalf of a person who is no longer mentally capable.
  • Guardians may make decisions such as where to live, health care, etc.

Trusteeship:

  • A trustee is appointed by the court to handle the financial matters of a senior.
  • Generally, the person acting as a trustee will also act as a guardian to ensure that both financial and personal matters are handled for the senior.

 

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