Alberta Wills & Estates Laws Explained

It goes without saying that laws can be wordy and complicated at times, even for lawyers! For example, Canada’s Income Tax Act is over 3,000 pages long, and that’s just one law out of thousands that apply to our daily lives. That’s why most lawyers specialize in one or two particular areas of law, for example, Family Law, Criminal Law, Securities Law, or Real Estate Law.

Wills & Estates Lawyers in Alberta must be familiar with 6 main pieces of legislation. There are other laws that apply to Wills & Estates practice as well, and lawyers must also keep themselves up-to-date on case law in their practice area (written court decisions).

However, the 6 legislative documents covered in this article provide much of the legal framework that guides Alberta’s Wills & Estates lawyers. This article attempts to keep things interesting, while still providing you with a solid summary of each of the 6 laws that guide Wills & Estates practice in Alberta.

Why Should I Care About Wills & Estates Laws?

Whether you’re an Estate Executor, the beneficiary of an Estate, the loved one of a recently deceased individual, have a Will or are considering getting a Will, having a baseline understanding of Alberta’s Wills and Estates laws is helpful.

Of course, it’s your Wills & Estates lawyer’s job to know the ins and outs of the law, and to advise you of which laws apply to you, however, it’s helpful to have some background knowledge about the Wills & Estates laws that may affect you.

What are the Different Types of Wills & Estates Laws in Alberta?

With some overlap, Wills & Estates Law can be broken down into 3 main categories: Estate Planning, Estate Administration, and Estate Litigation.

The lawyers at West Legal practice all 3 types of Wills & Estates Law, however, this article focuses on Estate Planning and Estate Administration laws, as Estate Litigation is a complex topic that deserves its own article.

Here’s a brief summary of each of the 3 types of Wills & Estates Law:

1. Estate Planning laws are, as the name suggests, relevant to your current Estate Plan—an effective Estate Plan is based on 3 foundational documents: A Will, Enduring Power of Attorney, and Personal Directive.
2. Estate Administration law is applicable when someone passes away. An Executor is tasked with distributing the deceased’s Estate and may have to apply for a Grant of Administration or Probate as part of the Estate Administration process.
3. Estate Litigation law is practiced when there’s a challenge to an Estate. Oftentimes, Estate litigation matters end up in court, where a judge or justice decides the matter in favour of the Estate or the challenging party.

Estate Planning Laws

While they affect all aspects of Wills & Estates law, the following 3 pieces of legislation are particularly applicable to Estate Planning. You can find any of these laws through a Google search if you’d like to see the full text of each document.

1. The Wills and Succession Act

   This Act covers the following aspects of Wills and Estates Law in Alberta:

   • What happens if 2 or more individuals die at the same time?
   • The legal effects of a Will—in other words, what does a Will do?
   • What happens if a beneficiary dies before the Will-maker?
   • Who can make a Will;
   • The requirements of a valid Will;
   • Formal Wills;
   • Holograph Wills;
   • Military Wills;
   • Who is eligible to witness a Will;
   • Types of gifts that are void or not enforced;
   • Making changes to, or altering a Will;
   • Revoking a Will;
   • Gifts to ex-spouses or former partners;
   • Interpretation of a Will;
   • References to children and descendants in a Will;
   • Charitable gifts;
   • The Court’s authority regarding Wills; and
   • Many, many other relevant Wills & Estates law topics.

2. The Personal Directives Act

   Topics covered by the Personal Directives Act include:

   • What’s a Personal Directive?
   • Who can make a Personal Directive?
   • Who can be appointed in a Personal Directive?
   • What happens if someone regains capacity?
   • What decisions can be made pursuant to a Personal Directive?
   • The requirements of a Personal Directive;
   • Personal Directives made outside of Alberta;
   • Revoking a Personal Directive;
   • Giving effect to a Personal Directive;
   • Recordkeeping when acting pursuant to a Personal Directive;
   • Financial compensation; and
   • Emergency medical services.

3. The Powers of Attorney Act

   This Act addresses the following topics:

   • What is an Enduring Power of Attorney?
   • When does a Power of Attorney come into effect?
   • Mental Incapacity;
   • The Attorney’s authority to act;
   • The Attorney’s duty to act;
   • Court applications;
   • Accounting;
   • Terminating a Power of Attorney;
   • Renouncing Power of Attorney; and
   • Other legal topics that are relevant to Powers of Attorney.

Estate Administration Laws

Like the Estate Planning laws, you’re able to access these 3 pieces of legislation on the internet at no cost. Typically, a Google search of the legislation’s title will yield results.

1. The Estate Administration Act

   The Estate Administration Act covers the following matters:

   • The Executor’s duties;
   • The disposition of a deceased’s remains;
   • The core tasks of an Executor;
   • An Executor’s failure to perform core tasks;
   • Which notices an Executor must serve, and on whom they must serve them;
   • Grants of Probate and other types of grants;
   • Estate obligations and debts;
   • Distribution of Estate property;
   • Accounting requirements;
   • Lawyer’s fees;
   • Renouncing Executorship;
   • Applications for Court direction; and
   • Many other legal topics regarding Estate Administration.

2. The Surrogate Rules

   The Surrogate Rules are actually a regulation to another piece of legislation, the Alberta Rules of Court. The Rules of Court regulate court proceedings of all kinds in Alberta, however, the Surrogate Rules deal specifically with probate applications, and other court applications that are applicable to Wills & Estates law.

   Probate applications must strictly adhere to the requirements of the Surrogate Rules. If you’re an Estate Executor, the Wills & Estates team at West Legal can help you navigate the intricacies of the Surrogate Rules.

3. The Trustee Act

   The Trustee Act is a lengthy piece of legislation and many of its provisions don’t specifically apply to Wills & Estates law. However, Wills often create trusts, called testamentary trusts, whereby the Executor is required to hold funds in trust on behalf of a beneficiary of the deceased’s Estate. When managing a testamentary trust, an Executor must meet the requirements of the Trustee Act. If you’re an Estate Executor, an Alberta Wills & Estates lawyer can help you determine what your rights and responsibilities are pursuant to the Trustee Act.

Which Wills & Estates Laws Apply to Me?

The experienced Wills & Estates lawyers at West Legal can help you better understand how Alberta’s Wills & Estates laws apply to your situation.

If you’re an Estate Executor, or if you’d like to create your own Estate Plan, contact us today for a free-of-charge, no-obligation consultation with one of our Wills & Estates lawyers.