Wills and Estates Law Flashcards
What Statute governs Wills and Estates?
Wills and Succession Act
> Provincial
A Will is not a contract – a contract is two people promising each other something.
Succession: passing of property (estate) upon death.
Define a testator:
The person who makes the Will, the person whose Will it is.
> Testator: male version
> Testatrix: female version
Define an executor:
The person chosen by the Testator to carry-out the requests written in the Will.
> (e.g. funeral arrangements, gather up all of the property, pay all remaining debt, file any tax returns, distribute estate according to the Will). > Executors often hire lawyers to help. > Also called “personal representative.” > Executor: male version > Executrix: female version
Define a beneficiary, and what the 2 types of “gifts” are:
Person(s) who receive property under the Will.
- Specific “gifts”: certain item(s) or certain amounts of money
- Residue: whatever is left after specific “gifts” are distributed
The 2 types of people who can contest someone else’s Will:
- Children:
> If under 18
> If over 18 but mentally/physically disabled and cannot support themselves because of the disability
> If they are between 18 and 22, and are at school full-time - Spouse, if married or AIP
What happens to money left to minor beneficiaries?
If you leave a gift ($) to a child under 18, it goes into a Trust Fund.
> If you do not specify in your Will at what age you want them to get their money, then they will receive it at minimum of 18 years old.
Define testate and intestate, and codicil:
> Testate: died with a valid Will
Intestate: died without a valid Will
> Codicils: mini Wills that change the larger Will without having to rewrite everything into a new Will.
If you die intestate, what is the hierarchy of individuals who receive your estate?
How long does the Executor have to find family members to receive the estate?
How long does the government hold the estate for?
- Spouse (if married or AIP) and children/”descendants”
- Parents
- Siblings (full and/or half-blood)
- Grandparents
- Extended family members
- Government (last resort)
> The executor has 2 years to find family members to take the estate;
> If the government gets the estate, they hold it for upto 10 years in case a family member shows up.
If an individual died intestate, “descendants” includes all children of the deceased who (3):
- Born inside or outside a marriage
- Adopted
- In womb at the time of the deceased’s death and later born alive
What term is used to describe how descendants inherit from the deceased?
Per stirpes: “by stock”
> Per capita means dividing the estate equally between all descendants
What is the rule if the deceased dies intestate, and has a spouse with whom they share all children?
If all of the deceased’s children are also the children of the spouse (or AIP) then the spouse (or AIP) gets the entire estate.
What is the rule if the deceased dies intestate, and has a spouse with whom they DO NOT share ALL children?
If any of the children of the deceased are not also the children of the spouse (or AIP), then the spouse (or AIP) gets preferential treatment, and the greater of:
$150,000.00 or
50% of the estate
> The rest of the estate goes to the children (on a per stirpes basis)
Can you have both a spouse and AIP?
Yes - e.g. you have separated from your married spouse but not yet divorced, and start a new relationship with someone else without yet divorcing from previous spouse
Who are the 2 people you appoint if you are still alive but not capable of making decisions for yourself?
- Enduring Power of Attorney: legally appoint someone to make financial decisions for you
- Personal Directive: legally appoint someone to make personal/medical decisions for you
What is a holographic Will? Is it valid?
A holographic Will is an informal, handwritten Will of the deceased, signed with no witnesses.
> It is a valid Will
