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99 Cards in this Set
- Front
- Back
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What is a will? |
document made by a testator directing how his or her estate is to be distributed upon death |
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What are some disadvantages of not having a will? |
The inability to name a guardian for a minor child The inability to control a child's access to their inheritance Inheritance without a will is based solely on blood relationship Lose control over who inherits your property Lose the power to exclude beneficiaries Lose control over how you want your remains to be handled Lose control over your organ donor wishes Lose control over who will administer your property |
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Define intestate: |
Dying without a will |
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Define beneficiary |
someone who inherits a part of your estate |
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List property that forms deceased estate: |
property that is solely in the name of the deceased property that the deceased owned as tenants-in-common interest in property - stocks, pension plan |
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List property that does not form deceased estate: |
property that is owned jointly due to right of survivorship designated beneficiary asset (life insurance) Private Pension Plan RRSP
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List the four statutes that come into play besides Wills and Successions Act? |
1. Unclaimed Personal Property and Vested Property Act 2. Family Maintenance and Support claim under Wills and Successions Act 3. Dower Act 4. Matrimonial Property Act |
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What is the Unclaimed Personal Property and Vested Property Act?
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provides that if no next-to-kin can be found within two years after the deceased's death their property will go to the Province of Alberta and after ten years to the government
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What is the Family Maintenance and Support claim under Wills and Successions Act? |
provides that a family member can receive a larger share of the intestate's will in total disregard of the inflexible rules |
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According to the Family Maintenance and Support claim under Wills and Successions Act who is a family member? |
A surviving spouse An AIP A child under 18 A child over 18 who can't work as a result of physical or mental disability A child between the ages of 18 and 22 who is enrolled in full-time studies A grandchild or great-grandchild under 18 - grandparents stood as guardian |
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Under the Family Maintenance and Support claim under Wills and Successions Act how many months does a family member have to bring a claim? |
six months |
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What is Dower Act? |
Gives you a life estate in your homestead. |
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What is Matrimonial Property Act? |
If a divorce has been successful the surviving spouse has six months to carry out their claim to receive some of their ex-spouses stuff. |
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Define Estate, Testator, Executor |
E: any property that deceased solely owns T: person who dies with a will E: person who carries out the wishes of the will |
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Define Surrogate Court |
Ask PJ |
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Define Probate |
Ask PJ |
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Define Inter vivos |
During life |
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Define post mortem |
After death. |
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Define Asset |
Ask PJ |
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Define minor |
Under 18 |
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Define Testator |
Author of the will |
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Define testacy |
Dying with a valid will |
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Define Testamentary Capacity |
the testator's mental ability to understand the nature of the will and the consequences of the will (understand their remains and where their estate is going) "of sound mind and body" |
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Define Undue Influence |
pressure or influence that someone puts on a testator where the pressure or influence is so great that the testator is no longer acting of his or her free will |
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Define Public Policy |
Provision is contrary to our society's idea of what is moral, legal, just, fair "status quo" |
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Define Specific Gift |
where an item (including money) of the testator is given to a particular person(s) |
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Define Bequest or Legacy |
specific gift of personal property - such as cash |
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Define Devise |
gift of real property (vacation home) |
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Define Residue |
What is left in the estate after all testator's debts and expenses have been paid and after all of your specific gifts have been distributed
Estate - (Debts + Expenses + Specific Gifts) |
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Define Gift Over |
"in the alternative" if the beneficiary dies before |
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Define Ademption |
when the gift fails because the property no longer exists (joint tenancy or not in your possession anymore)
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When will the Beneficiary Get the Gift or Residue? |
Immediately In Trust Life Estate |
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If you write a valid will but the beneficiaries die what does that mean? |
You are intestate |
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If your will only contains some of your property what does that mean? |
Partial intestacy |
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List the seven rules for distribution of one's estate in the even they die intestate: |
spouse/AIP (with exceptions) children (per stripes) Parents Siblings (per stripes) Grandparents (0.5 to maternal/paternal side per stripes) descendants of great grandparents on both sides per stripes Government
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When does the spouse/AIP get the deceased's estate when it's an intestate situation? |
When all their children are theirs together or no children have come from the relationship the spouse gets the entire estate. |
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If some kids are from another marriage and the deceased die's intestate what does the spouse/aip get? |
A preferential share of $150 000 or 50% of the amount if smaller. |
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If both an AIP and spouse are living at the time of death who gets what? |
Spouse and AIP will split their share and the rest goes to any descendants |
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If there is no spouse or AIP but children what will happen at the time of death? |
The children will inherit the estate per stripes |
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What happens if no spouse, AIP, children are to be found upon an deceased intestate? |
Parents will receive the estate 50/50 if alive. |
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If the intestate deceased person dies with no spouse, aip, children or parents what next? |
Siblings inherit per stripes or it goes to their descendants and stops at grand nieces/nephews. Adopted/half siblings count. Step siblings do not count unless legally adopted |
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If there are no siblings in an intestate situation where does the estate go? Where next? |
50/50 between maternal and paternal side to grandparents, if none then it goes to each aunt and uncle then first counsins |
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If no relatives on either side of the grandparents line what next in intestancy? |
Goes to great grand parents or great uncles and aunts. |
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What happens if no great grands are alive to accept estate? |
it goes to the government. |
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For the purpose of inheritance who is a spouse? |
legally married spouse - not if they have lived separate and apart for two years, have a declaration of irreconcilability, have a court order or agreement intended to permanently finalize marital affairs. |
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Who is an AIP in inheritance? |
-person who lived with the deceased in a relationship of interdependence -continuing period of not less than 3 years -has enetered into an aip agreement with the deceased -no longer aip if separated for one year |
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Define per stripes |
by the root |
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Describe "early inheritance" |
Given before death of parent the inheritance will be deducted from the share the child is given before but added to general estate |
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Define Wills and Succession Act |
main principle of the act is to give primacy to the testator's intent and also bring more guidelines to the interpretation and validation of wills |
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What statutes and claims affect intestate distribution? |
Survivorship Unclaimed Personal Property and Vested Property Act Family Maintenance and Support Dower Act Matrimonial Property Act |
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Define Survivorship statute: |
where people die in circumstances where order of death cannot be established this statute provides that each individual survived the other which means we split things 50/50 and look to alternate beneficiaries. |
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Define Unclaimed Personal Property and Vested Property Act: |
government has two years to look for relatives in situations where deceased died with no beneficiaries under the Rules - after two years it goes to Province of Alberta but the beneficiaries still have 10 years to claim estate |
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Define Family Maintenance and Support |
used to be call Dependent's relief applicable where the dependents of the deceased feel they are entitle to a greater share of the intestate's estate than provided under the Wills and Successions Act. |
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Who is a family member under the Wills and Successions Act? |
surviving spouse adult interdependent partner child under 18 child between ages 18-22 who is a full-time student child over 18 who can't work as a result of a physical or mental disability grandchild/great-grandchild where the grandparent was the guardian |
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If you want to make a claim under the Family Maintenance and Support Act what is the time period to do so? |
within six months of Grant of Probate or Letters of Administration unless family consents
(money will be deducted from estate and then distributed as normal) |
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What are factors considered to those who can make a claim under the Family Maintenance and Support Act? |
nature and duration of relationship age and health capacity to support self (and support from another) legal obligation of deceased to support deceased's reasons for not giving to a a family member agreement waiver size, nature, and distribution of estate and any property the person is receiving from estate property received during life property received under Matrimonial Property Act or Wills and Successions act |
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Define Dower Act |
applicable where only one married spouse owns the homestead the surviving spouse will get a life estate in the homestead which means any disposition in the will be postponed until the life estate is done *disabled person |
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Can AIP's make claims under the Dower Act |
No, it is for married couples only. |
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Since AIP's and tenant-in-common relationships can't make claims under the Dower Act what does the Wills and Successions Act provide? |
they have the right to temporary possession for 90 days if they had "ordinarily occupied the family home" |
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In terms of a AIP or spouses right to 90 days in the estate what does that mean? |
even if the property is rented they have the right and the estate must pay rent, mortgage payments, taxes, utilities, insurance, etc and they can use household goods and vehicles |
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Define Matrimonial Property Act |
only applies to separated and previously married spouses who can claim to 50% of property |
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What's the timeline for a surviving spouse to make a claim to the MPA? |
Six months |
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Define Grant of Probate |
document that court gives authority to executor to act for the estate |
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If you are successful with the MPA claim what happens the rest of the estate? |
Claim is deducted and then estate is distributed as usual |
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Who can make a valid will? |
Testator must be at least 18 years old and have testamentary capacity. |
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When can a minor make a will? |
They have a spouse/aip Member of the Canadian Forces Authorized by an order of the Court |
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Testamentary Capacity means that the testator understands: |
-they are making a will that gives away their property on death -to who they are giving the property -extent of the property being given away -dependents may still making a family maintenance and support claim for a larger share of the estate |
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Is a testamentary capacity a test for sanity? |
No, just that you understand the contents of your will and consequences |
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What happens if the court strikes down a specific gift? |
then the gift will lapse into residue |
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What happens if the court strikes down a provision relating to residue? |
Residue will lapse into intestacy |
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What are three main reasons the court may overturn a will? |
Undue influence Against Public Policy Lack of testamentary capacity
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What property can be left in a will? |
"estate property" which includes any property that is solely owned by the testator, property owned as tenant-in-common, property testator had interest in at the time of death and designated beneficiary assets where estate is the beneficiary |
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Define Lapse |
Gift fails when the beneficiary predeceases the testator. |
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What are two main ways of leaving property in a will? |
Specific Gift or Residue |
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List the three ways a beneficiary receives their gift or residue? |
immediately, in trust or life estate |
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If a gift lapses what happens to it? |
a gift over clause will state if their is an alternate beneficiary, if the beneficiary has a child/grandchild it goes to their descendants, if not it falls into the residue, if the residue lapses then the testator becomes intestate due to beneficiary not being a child or grandchild |
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List two ways a beneficiary can not receive their gift? |
Ademption or Lapse |
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Define Attesting Witnesses |
two witnesses that are present when the testator signs the will |
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Define Holograph Will |
will that is completely in the testator's own handwriting |
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Define Personal Representative |
generic term that refers to the executor (handles testate) or administrator (handles intestate) |
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What are the three types of wills in Alberta |
Formal Will Holograph Will Military Will |
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What are the requirements for a Formal Will? |
-must be written/types (not verbal) -signed by the testator, acknowledge signature, have another person sign on behalf at the direction and in her presence -testator must sign/acknowledge will in the presence of two witnesses who are both present and -the witnesses must then sign in the testator's presence |
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Who can not be a witness in terms of formal wills? |
beneficiary spouse or AIP person signing will on behalf of the testator Spouse or AIP or person signing the will on behalf of the testator Person translating the will spouse or AIP of the person translating the will |
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Can an executor be a witness in terms of formal will? |
Yes, as long as they aren't a beneficiary. |
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If someone who is not allowed to be a witness is a witness to the signing of the will what happens? |
Their gift is VOID and will lapse into the residue |
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What are the requirements of a holograph will? |
-completely in the testator's own handwriting -signed by the testator
*does not have to be witnessed |
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Military Wills are available to: |
Canadian Forces personnel while on active service Member of any other naval, land, or air force while on active service |
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What are the requirements to having a valid military will? |
-signed by the testator or another person in the testator's presence and at her direction |
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What are your options for altering a will once made? |
-make changes on the original will -add a codicil (supplementary document) -re-type the will incorporating the changes |
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Define codicil |
supplementary document |
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In terms of changing a formal will what needs to happen? |
changes must be signed by the testator and witnesses by two people (don't need the same witnesses from the original) |
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In terms of changing a holograph will what needs to happen? |
alterations must be signed by testator |
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A will can be revoked any time prior to what? |
testator's death |
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How is a will revoked? |
Revoked by a subsequent will, written statement declaring the testator's intent to revoke the will, intentional physical acts - burning, tearing, destroying the will |
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Does marriage revoke a will? |
No |
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What does divorce do in terms of revocation of a will? |
revoke a beneficial interest in property to the former spouse/AIP in the will revoke the appointment of a former spouse/AIP as executor, trustee or guardian in the will *also applies to termination of AIP relationships
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How do you revive a will? |
need to re-execute the will or execute a codicil |
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The same statutes that affect distribution of intestate estate also affects distributions with a testate estate, list them: |
survivorship wills and succession act dower act matrimonial property act |
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If you are in a tenants-in-common house can you make a claim under the Dower Act? |
No, for homesteads only. |
