The picture above is from a time when we just had Zeynab. We had been in Canada for five years and were planting our roots in a new city. We are now parents of two children. We have mortgages, assets, and increased responsibilities. We think about the future and plan for it as best as we can. One of the issues which has recently concerned us is Wills and especially Wills for new Canadians.
There are many factors to consider, so I decided to chat with Ailsa McGurk who is a Barrister, Solicitor and Notary at Lanterna Law in Calgary. Here are the questions that I had for Wills and especially Wills for new Canadians. Hope this helps you all!
What’s a will and who should be included in it?
A Will is a legal document that takes effect only upon the death of the person who writes and signs it. A Will allows you to make choices about how the things that you own, also known as your Estate, will be dealt with upon death. Through a Will, you can choose who will act as your Executor and manage the Estate. A Will also allows you to choose the beneficiaries who will receive the Estate assets and the way in which the Estate will be distributed to the beneficiaries, such as through an outright gift of money or through a trust.
A Will is extremely important for parents of children under the age of 18 as it allows the parents to designate someone to act as a Guardian and take over the care of such minor children. You can also use the Will to give the Executor the authority to access the Estate’s assets to pay the Guardian for the care, benefit, maintenance, and education of any minor children.
While you have a lot of freedom to choose who you want to give your Estate to, the law in Alberta does require that you leave adequate support for dependent family members, including spouses, common law partners, dependent minor children, and adult children who cannot make a living due to a disability. If you do not provide adequately for these people from your Estate the Courts in Alberta have the authority to alter your Will so that your dependent family members are provided with proper financial support.
Why is a will important for everyone especially new Canadians?
It is important for all adult Canadians to have a Will in place because it gives you the power to choose who will manage your assets and who will receive your assets upon death.
If you pass away without a Will the Government of Alberta, through a law called the Wills and Succession Act, decides who will receive the Estate. The law sets out the order in which family members will inherit the Estate and there is no ability for other people or organizations that may have been important to you, such as charities, to benefit from your Estate. In the absence of a Will, any property left to a child under the age of 18 will be managed, for a fee, by the Office of the Public Trustee of Alberta and the child will receive their full inheritance at the age of 18. As well, having no Will in place can make it much more difficult and time consuming to administer an Estate as someone will have to make an application to the Court to be approved to access and deal with the estate assets.
Have you worked with Muslim clients and able to incorporate their needs?
Yes, I have had the pleasure of assisting clients from many different faiths and cultural backgrounds, including those of the Muslim Faith, with their estate planning. In my practice, I encourage all clients to share with me their important religious and cultural requirements that affect their Estate and the distribution of their assets, and I work with my clients to create a plan that balances their personal and religious beliefs with their legal support obligations outlined in the Wills and Succession Act.
What are the laws for the custody of children when there is no will and both parents pass away together?
Under Alberta Law, parents of minor children are generally considered to be guardians of their children. Typically, if one parent passes away and there are minor children, the surviving parent immediately becomes the sole legal Guardian of the surviving minor children.
A parent can, in their Will, name an alternate Guardian of any minor children in the event that both parents pass away. As long as the alternate Guardian accepts the appointment, their authority takes effect immediately upon the parents’ deaths and does not depend upon a court order. If both parents pass away without Wills in place, then an emergency court order would have to be acquired to provide temporary guardianship of any minor children to someone while a more permanent guardianship solution was approved by the Court.
What’s the best way to contact you?
I am always pleased to discuss Wills and Estate Planning and especially wills for new Canadians. I can be reached at
Phone: 403-474-9037
e-mail: [email protected]
or, if you would like to learn more about Wills and Estate Planning in a relaxed environment please join Lanterna Law for one of our monthly free seminars. Details can be found on our website at www.lanternalaw.com
