WILLS AND ESTATES FUNDAMENTALS

Transcription

1 Chapter listing Part I Planning for Death and Incapacity Chapter 1: Introduction to Planning for Death and Incapacity Chapter 2: Understanding the Legal Requirements for Wills Chapter 3: Interviewing and Advising a Client Seeking a Will Chapter 4: Drafting a Will Chapter 7: Planning for Incapacity: Enduring Power of Attorney Chapter 8: Planning for Incapacity: Personal Directives Chapter 9: Dealing with Incapacity: Adult Guardianship and Trusteeship Act User note As part of our package for lawyers transferring or being reinstated to the Law Society of Alberta, Wills and Estates Fundamentals consists of specific chapters excerpted from the Alberta Wills and Estates Practice Manual, the newest addition to the Legal Education Society of Alberta s Practice Manual Series. For more information, or to purchase the Practice Manual, please visit our website, or contact us at or lesa@lesa.org. iii

2 CHAPTER 1 INTRODUCTION TO PLANNING FOR DEATH AND INCAPACITY 1 Planning for death and incapacity Introduction to the Wills and Succession Act The effect of the Wills and Succession Act Related reforms Interpretation and application of the Wills and Succession Act Definitions Interpretation Survivorship Advances and the abolition of presumptions Advances Presumptions and doctrines Regulations Part I 1-1 LESA 2017

3 CHAPTER 2 UNDERSTANDING THE LEGAL REQUIREMENTS FOR WILLS 1 Introduction to wills A brief history of wills and the subjective intention approach The rules governing creating a will Legal effect of wills Formalities for making a will Capacity In writing and signed The signature The witnesses The military Gifts to a witness Alteration, revocation, and revival Alteration Revocation Effect of marriage or adult interdependent relationship Revival Gifts to an ex-spouse or former adult interdependent partner Interpreting wills Rules of interpretation Children, descendants, issues, heirs, and kin Rules for lapse and other failed gifts Court orders and validating wills Clear and convincing evidence of a testator s intentions Validating wills that do not comply with formalities Validating alterations that do not comply with formalities Rectifying wills by adding or deleting characters, words, or provisions Validating gifts to witnesses that would otherwise be void Part I 2-1 LESA 2017

4 CHAPTER 3 INTERVIEWING AND ADVISING A CLIENT SEEKING A WILL 1 Interviewing and advising a client seeking a will Property excluded from an estate Designated beneficiaries Advancement transfers into joint names Duties and responsibilities of an estate lawyer Lawyers duties owed to clients Lawyers duties owed to beneficiaries Use of questionnaires and checklists Background information about the testator Assisting a client in selecting appropriate persons Personal representatives Guardians Beneficiaries Limits on testamentary freedom Rights of spouses matrimonial property claims Rights of spouses and AIPs family maintenance and support Funeral and burial arrangements and donation of organs Tax issues Estate tax Capital gains tax Principal residence Spousal rollover Spousal trust rollover Farm rollover Capital gains exemption Registered retirement savings plans and registered retirement income funds Safekeeping wills and instructions to and from a client Part I 3-1 LESA 2017

5 CHAPTER 4 DRAFTING A WILL 1 Drafting wills Plain language drafting Components of a will Statement of intention and name Contemplation of marriage Revocation Appointment of a personal representative/executor General clauses relating to personal representatives Transmission Debt payment Dispositive clauses of specific and personal property Household goods and personal effects Memorandum of household goods and personal effects Specific gifts Gifts to charities Gifts paid only once Residuary gifts Trusts Family disaster clause Advances, set-offs, loans Family maintenance and support declaration Administrative provisions and specific powers Standard powers of the personal representative Power to sell or retain Power to distribute property Power to invest Power to delegate Power to pay taxes Other specific powers of the personal representative Power to deal with a business Executor s compensation and exoneration Part I 4-1 LESA 2017

6 9.1 Setting the fee Professional charging clause General exoneration clause Survivorship In Terrorem or forfeiture clauses Interpretation clauses Definitions Interpretation Common words and phrases Guardians Appointment Payments Renovations Burial/cremation/funeral instructions Attestation clause Affidavit of signature to a will Precedents Some other considerations Absolutely Beneficiaries Lapses/gifts over Ademption Difficult beneficiaries Gifts to minors Gifts to social assistance recipients Protecting disability benefits Mutual wills Codicils A note about holograph and home-made wills Part I 4-2 LESA 2017

7 CHAPTER 7 PLANNING FOR INCAPACITY: ENDURING POWER OF ATTORNEY 1 Powers of attorney at common law Enduring powers of attorney Requirements for a valid enduring power of attorney Types of enduring powers of attorney Determining capacity Test for necessary capacity to sign an enduring power of attorney Privacy issues Authority of attorney Powers of attorney and trusts Terminating an attorney s power Applying for advice and direction Accounting Characterizing an attorney s role Compensating an attorney Form of enduring power of attorney Assets in other jurisdictions Part I 7-1 LESA 2017

8 CHAPTER 8 PLANNING FOR INCAPACITY: PERSONAL DIRECTIVES 1 Personal directives at common law Personal directives Requirements for a valid personal directive The test for capacity to sign a personal directive Determining capacity Content of personal directives Bringing a personal directive into effect When a personal directive ceases to have effect Revoking a personal directive Agents duties, authority, and limitations on authority Compensating an agent Service providers Public guardian Court review Agents liability and protections Forms and technical rules Other jurisdictions Part I 8-1 LESA 2017

9 CHAPTER 9 DEALING WITH INCAPACITY: ADULT GUARDIANSHIP AND TRUSTEESHIP ACT 1 Introduction to Adult Guardianship and Trusteeship Act Capacity defined Jurisdiction Types of orders Help with decision-making on personal matters Supported decision-making Co-decision-makers Guardians Guardianship orders Review of guardianship orders Who may be appointed as a guardian Guardian compensation Procedures for specific circumstances Guardianship orders granted in urgent situations Urgent health-related decisions Emergency health care Trusteeship Threshold test for trusteeship order Who may be a trustee Trustees authority and responsibilities Ability to make gifts Trusteeship plans Wills and testamentary dispositions Trustee compensation Review of trusteeship orders Accounting requirements When a trustee dies or loses capacity Death of a represented adult Access to and use of personal information Guardians Trustees Part I 9-1 LESA 2017

10 7 Transitional provisions Interested persons and conflicts of interest Application for appointment/review of order Applications Review applications Review officer Documents Applications to examine and approve accounts Costs Finalizing the file Part I 9-2 LESA 2017