Planning for Death: Wills, Estates, and Funeral Arrangements

Law

When planning for your death, you have many legal issues to consider. See the sections below to learn about:

  • Why you should write a Will
  • What you can include in your Will
  • How to choose a Personal Representative for your estate
  • Planning for different kinds of property (including digital assets)
  • Planning for organ and tissue donation
  • Removing life support and medical assistance in dying
  • Planning your own funeral
  • Different rules if you live on-reserve


Choose the Process tab above for checklists, forms, and contact information you may need.

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: July 2016
Who is this Information Page for?

This Information Page contains information about legal issues to consider when planning for death. This includes planning about:

  • what will happen to your property when you die, and
  • what will happen with your body when you die.
Tip

When you are planning for death, it is also a good time to plan for possible illness while you are still alive. You will need different documents to plan for illness. For more information, see the Planning for Illness Information Page.

In general, the law and process on this Information Page is for people who live in Alberta. This is because for Alberta law to apply, the people affected should live in Alberta and the property being dealt with should be in Alberta. If you want to plan for property that is in another province, territory, or country, please see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

You are currently on the Law tab of this Information Page, which has information on what the law says about planning for death. For information on the processes you need to follow to help achieve what you want, click on the Process tab above. There is also important information in the Common Questions and Myths tabs above.

The law and legal system are complex: this will take a while. Be sure to give yourself enough time to read the information below, understand how it applies to your situation, and know what actions you may need to take.

What the words mean

These words are not listed alphabetically—they are in the order that makes it easiest to understand the complete legal picture.

If you are looking for a specific term, you can use the Glossary, which is in alphabetical order.

spouse

A person who is legally married to another person.

common-law partner

In Alberta, the term “common-law” only applies to certain couples and only for certain federal laws (such as the Income Tax Act). Under most federal laws, the term “common-law” refers to a couple who has lived together in a romantic relationship:

  • for at least one year; or
  • for less than one year but they have a child together.

Under Alberta’s provincial laws, there is no such thing as “common-law” partners and “common-law” relationships. In Alberta, similar rights and responsibilities come from being in an “Adult Interdependent Relationship” (see below).

Be Aware

Under the federal Indian Act and the federal Family Homes on Reserves and Matrimonial Interests or Rights Act, the term “common-law” is used only for a couple who has been living together in a romantic relationship for at least one year (regardless of whether or not they have had a child together).

Adult Interdependent Relationship (AIR)

The term used in Alberta to describe what many people might think of as a “common-law” relationship.

A person is in an Adult Interdependent Relationship if he or she has been living with and in a “relationship of interdependence” with another person:

  • for 3 years; or
  • for less than 3 years if they have signed an Adult Interdependent Partner Agreement (see below); or
  • for less than 3 years if they have a child together (by birth or adoption).

A “relationship of interdependence” is a relationship where the partners are not married but they:

  • share one another’s lives;
  • are emotionally committed to one another; and
  • function as an economic and domestic unit.

The relationship does not have to be romantic or sexual to meet these requirements; it can be non-romantic (also called “platonic”).

Adult Interdependent Partner (AIP)

A person who is in an Adult Interdependent Relationship with another person.

Adult Interdependent Partner Agreement (AIPA)

A written contract in which 2 adults agree to become Adult Interdependent Partners. That contract must be in the form required by the Alberta Adult Interdependent Partner Agreement Regulation—see the following resource.

PDF Adult Interdependent Partner Agreement Regulation
Government of Alberta
English

capacity

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are two parts to mental capacity:

  1. The ability to understand the nature of a decision. This includes understanding all of the information that is relevant to a particular decision.
  2. The ability to understand the consequences of making a decision. That is, a person with capacity would understand what could happen as a result of making a certain decision.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not. However, capacity can change from moment to moment. For example:

  • a person who is drunk or high may not have capacity, even if he or she otherwise would; and
  • a person can flip back and forth between having capacity and not having capacity, due to things such as the effect of medications (or forgetting to take them), or changing blood sugar levels.

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor's opinion or a judge's decision).

property (also called “assets”)

Something that you own. Property can be:

  • “personal” property, such as bank accounts or vehicles; or
  • “real property,” such as land, a house, or a condominium.

debt

Money that is owed to another person, bank, or company. For example: a loan, the amount owed on your credit cards, or something you are still making payments on (such as the living room furniture that you have another 18 months to pay off). The state of owing money is called being “in debt.”

Will

A document that says what will happen to your “estate” after you die. Your estate might be all of your property, or it might only be some of your property (see the definition of “estate” below).

In your Will you also name your Personal Representative, who is the person who will be responsible for managing your estate after you die (see the definition of “Personal Representative” below).

Testator

The person who writes a Will.

holograph Will

A Will that is completely written in the Testator’s handwriting.

codicil

A document that makes a change to your existing Will. A codicil is a separate document that is attached to the original Will. Just like a Will, a codicil can be typewritten (printed) or completely written in the Testator’s handwriting.

the deceased

A person who has died.

estate

The property that you own at the time of your death and that will be passed to others through your Will. This process is called “passing through” your Will, or being “distributed through” your Will.

There are several kinds of property that are not included in your estate:

  • property that you held in “joint tenancy” with one or more other people;
  • insurance policies where you have named a beneficiary; and
  • retirement savings plans (such as pension plans, RRSPs, TFSAs, and RRIFs) that have a named beneficiary. See the definitions of RRSPs, TFSAs, and RRIFs below.

intestacy

The state of having died without leaving a Will. When someone dies without a Will, they are said to have died “intestate.”

Personal Representative

A person named to manage the estate of a person who has died. There are 2 ways to become a Personal Representative:

  • the person can be named as a Personal Representative in the Will of a deceased person; or
  • a court appoints the person as a Personal Representative in a “grant of administration.”

Executor

This is the old word for a person who was named in a Will to manage the estate of a person who has died. In Alberta, the correct legal term for this is now “Personal Representative.” However, you may still see the old word used in some legal materials. Also, the term “executor” is still used to refer to a person who administers the estate of a deceased Status Indian.

Administrator

This is the old word for a person who was appointed by a court to manage the estate of a person who has died. In Alberta, the correct legal term for this is now “Personal Representative.” However, you may still see the old word used in some legal materials.

probate (also called a “grant of probate”)

A court process to confirm that:

  • a Will is authentic (for example: not fake or forged);
  • a Will is legally sound (for example: it was not signed by a person who lacked the capacity to sign a Will); and
  • the person named in the Will as the Personal Representative has the authority to administer the Testator’s estate according to the terms of the Will (for example: the person who was named as Personal Representative still has capacity, and there is no other legal reason to not allow that person to be the Personal Representative).

To get probate, special forms must be submitted to the Alberta Court of Queen’s Bench Surrogate office.

grant of administration

A court process that appoints someone to be the Personal Representative of a deceased person’s estate. This usually happens when the deceased person has died without leaving a Will.

This term is also used to describe a process under the Indian Act, where the minister of Indigenous and Northern Affairs Canada appoints a person (such as a relative) to administer the estate of a deceased Status Indian. This will happen whether the deceased Status Indian left a Will or not.

beneficiary

A person who gets money or property (a “benefit”) because they are named as the recipient of that benefit in a legal document. The benefit can come from different things, such as:

  • a life insurance policy;
  • someone’s Will; or
  • a trust. (A trust occurs where another person legally owns and takes care of the property for the benefit of the beneficiary.)

bequest

A gift of property that is left to a beneficiary in a Will.

revoke

To withdraw or cancel the effect of something. A document that is revoked is no longer valid. For example, a licence, a Will, or a law could be revoked. If you revoke your Will, it will no longer apply if you die. You would need to make another Will to replace it.

to hold property in trust

A relationship where one person (a “trustee”) legally holds property for the benefit of another person (a “beneficiary”). The trustee manages the property and collects income from the property, and then passes the income on to the beneficiary.

This happens often with children, because children are too young to hold and manage property themselves.

trustee

A person who legally holds property for the benefit of another person (who is called a “beneficiary”).

trust company

A corporation that can act as a trustee on behalf of a person or a person’s estate. The trust company manages the assets and eventually transfers the estate’s assets to the beneficiaries. In a Will, a trust company can be named as the Personal Representative.

Designation of Beneficiary form

A special form where you state who will receive a particular asset if you die. Then, when you die, the asset goes directly to that person: it does not pass through your Will and does not form part of your estate. If you want the asset to pass through your Will, you can name your “estate” as the beneficiary.

Only some kinds of assets are legally allowed to have Designation of Beneficiary forms. Examples include: pension plans, life insurance, RRSPs, RRIFs, and TFSAs. See the definitions of RRSPs, TFSAs, and RRIFs below.

Registered Retirement Savings Plan (RRSP)

A special kind of account that is registered with the federal government, which you use to save for retirement. The money you put into an RRSP is not included as “income” on your tax return when you deposit it, so you do not pay “income tax” on that money during that year. Instead, you will pay income tax on that money when you take it out of the account.

Every year, you are allowed to contribute a certain percent of your income to your RRSP. All of the money in your RRSP can grow tax-free during the time it is in that account.

When you open an RRSP, you will be asked to fill out a "Designation of Beneficiary" form. Your beneficiary can be updated later if you want or need to change it.

Registered Retirement Income Fund (RRIF)

A special kind of account that is registered with the federal government, which you can use to withdraw income during your retirement. People will often use RRIFs when they are no longer eligible to keep an RRSP (after they turn 71), but you can open an RRIF at any time. Funds in an RRIF can grow tax-free just like funds in an RRSP.

However, an RRIF is different from an RRSP:

  • You can no longer contribute any money to the account.
  • You are required to withdraw a certain percentage of the RRIF each year. The percentage is based on your age.

In other words, you use an RRSP to save for retirement, but you use an RRIF to spend your retirement income.

When you open an RRIF, you will be asked to fill out a “designation of beneficiary” form. Your beneficiary can be updated later if you want or need to change it.

Tax-Free Savings Account (TFSA)

A special kind of account that is registered with the federal government, which you can use to save money. Unlike with regular savings accounts, the income earned on the money in a TFSA is completely tax-free, while it grows in the account and when you take it out of the account. Every year, there is a maximum amount of money that you are allowed to deposit into a TFSA.

When you open a TFSA, you will be asked to fill out a “designation of beneficiary” form. Your beneficiary can be updated later if you want or need to change it.

digital asset

A person’s electronic or virtual property such as:

  • emails,
  • digital photos,
  • videos,
  • tweets,
  • texts,
  • music,
  • e-books, and
  • online account information for websites or programs such as Facebook, LinkedIn, Instagram, bank accounts, store accounts, PayPal, and any others.

Digital assets can have a financial value. For example, an online tool or website may make money or cost the owner something. Or, digital assets may only have sentimental value. For example, the photos of a family member.

Someone’s combined digital assets are sometimes also called their “digital estate.”

joint tenancy

When 2 or more people own all of an asset together, that property is held in “joint tenancy.” Each person involved is called a “joint tenant.” For example: a joint bank account. Under joint tenancy, all of the joint tenants own all of the money in the bank account (not just their “share”). If one of the joint tenants dies, the entire account goes to the surviving joint tenant(s): the property is not part of the deceased’s estate.

tenancy in common

When 2 or more people own an asset together, but each owns a portion, that property is held in “tenancy in common.” Each person involved is called a “tenant in common.” For example: land. Under tenancy in common, each of the tenants owns a portion (or share) of the value of the land. If one of the tenants in common dies, that person’s portion does not automatically go to the other owner(s). Instead, that portion goes through the Will of the deceased.

Indian Act

The main law through which the federal government administers Aboriginal issues, including:

  • “Indian” Status;
  • Status Indians’ Wills and estates;
  • First Nations’ governments;
  • band administration; and
  • the management of reserve lands and communal funds.

Indian

A person who has “Indian status” under Canada’s Indian Act. This term was originally used by Europeans to identify indigenous people of South America, Central America, and North America. Although it is no longer commonly used to refer to Aboriginal people, it is still the “legal” term required by the Indian Act.

Indian band (also called “First Nation”)

A group of Aboriginal people who:

  • have been declared to be a band for the purposes of the Indian Act (the Act defines certain Aboriginal people as “Indians”);
  • live on reserve lands that have been set apart for their collective use and benefit; and
  • have money held for them by the Government of Canada (also called “the Crown”).

Most bands hold reserve lands, but bands and band members do not legally own the land because the legal title belongs to the Crown and is “held in trust” (see the definition above) for the band by the Crown.

A more modern term used for a band is “First Nation.” The terms “band” and “First Nation” are also used to describe the government of the group and its reserve. Many band governments also represent members who live off-reserve. Bands can also govern non-band members who live on the band reserve and/or work for the band.

reserve

Land set aside under Canada’s Indian Act and treaty agreements for the exclusive use of an Indian band. Band members have the right to live on reserve lands, and band government and administration is often located there.

Indigenous and Northern Affairs Canada (INAC)

The federal government department that supports Aboriginal people (First Nations, Inuit, and Métis) in Canada. From 2011 to November 2015, this department was called “Aboriginal Affairs and Northern Development Canada” (AANDC). Because the change in name is still quite new, some resources and even the department’s own website may still show the old name. Before 2011, the department was called Indian Affairs and Northern Development (IAND).

The laws that may apply to you

You may wish to read the laws (also called “statutes” or “acts”) that apply to your situation. The laws included on this Information Page are:


Web Estate Administration Act
Government of Alberta
English

Web Dower Act (and associated Regulations)
Government of Alberta
English

Web Indian Act
Government of Canada
English


Web National Defence Act
Government of Canada
English

Web Canada Pension Plan (R.S.C., 1985, c. C-8)
Government of Canada
English

When reading laws, you also need to know about the “regulations” associated with those laws. Each of the links above takes you to a page that lists the laws as well as the regulations that go with them. For more information on laws and regulations, see the Our Legal System Information Page.

If there has been family violence

Has there been any domestic abuse in the family? It is very important to recognize and admit this, both to yourself and to any organizations you approach for help. Everyone involved must be kept safe. This is especially true if the abuser is pressuring you to:

  • write a Will;
  • appoint him or her as your Personal Representative; or
  • make him or her a beneficiary.

If you have been the victim of domestic violence, some things to keep in mind:

  • Be honest and upfront about it. Violence does not go away on its own. See the What is Family Violence? Information Page for more information.
  • It is never your fault. The responsibility belongs only to the abuser.
  • There is no single right way to proceed—it will depend on the exact details of your case.
  • There are criminal laws and protective laws that might be able to help.
  • Abusive situations are complicated. Consider talking to a lawyer (or another person who is helping you with your legal issues) about the best way to proceed. See the Community Legal Resources & Legal Aid and Working with a Lawyer Information Pages for more information about your legal options.

Some of the resources on this Information Page have both general family law information as well as how that information applies in situations of family violence. Where appropriate, resources specific to situations of domestic violence are noted with this icon:

Family Violence

 

Be sure to read these resources thoroughly, because it is sometimes difficult to understand what to do in situations of violence without understanding the legal picture in general.

Why planning for death is important

Many people assume that when they die, their closest friends and relatives will know exactly what they wanted to have happen to their belongings and their bodies. Many people also assume that a loved one will simply be able to handle everything, and be legally allowed to do so. Neither of these things is true.

As a result of their misunderstandings, many people do not plan for death. This can lead to many problems. For example: many people believe that a spouse always gets everything. This is not true. If you recently got married, your old Will is not automatically cancelled by your wedding. Instead, the old Will will still be in effect and this may mean that your new spouse gets nothing.

Careful planning for death has many benefits, including:

  • It is the best way to ensure that you have control over what happens to your body and who gets your property after you die.
  • It allows you decide in advance who will have the job of making sure that your wishes are carried out.
  • If you have young children, you can suggest who you want to take care of them, and you can set aside funds for that care.
  • You can save money on taxes.

A clear plan is also a very good way to help avoid family conflict after your death. It lets everyone know what you want, and who gets what. This makes it a lot easier for those left behind. When a person dies, there is much work to be done. In many cases, loved ones quickly become overwhelmed searching for important information, making difficult decisions, and having disagreements with other family members about how to proceed. If you plan, you can help avoid this.

If you die without having planned for your death, there can be a great deal of chaos. Someone with an interest in the estate will have to apply to the Court to be named as your “Personal Representative.” Then your Personal Representative will have to deal with your estate without any guidance from you about what you would have wanted.

Tip

While you are planning for death, it is also important to plan for illness. As is the case with death, the law around substitute decision-making during illness is not always as people expect. For more information, see the Planning for Illness Information Page.

For more information about the importance of planning for death, see the following resources.

Web Why do I need a will?
Government of Alberta
English

Web Why is it important to have a will?
Government of Canada
English

Web Make a Will: FAQ
Ontario Bar Association
English

Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
See p. 4-6.

Web The Importance of Leaving a Will
Huffington Post Canada
English

Web When You Should Write a Will
Huffington Post Canada
English

Web How Making a Will Can Save Your Family From Fighting
Huffington Post Canada
English

Web Why Dying In Canada Is Different Today
Huffington Post Canada
English

Web The Difference between having a Will and having an Estate Plan
Patriot Law Group
English
This is a private source. Learn more here.


Web Last-minute wills more costly for clients
Estate Law Canada
English
This is a private source. Learn more here.

PDF Estate planning in the 21st century: New considerations in a changing society
BMO Financial Group
English
This is a private source and can be a challenge to read. Learn more here.

Audio and video resources:

Video What you need to know about writing a will - CTV Edmonton (Jan. 31, 2012)
CTV (via YouTube)
English
Watch until 1:15.

Video Estate Planning for Baby Boomers
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.

Video Ever wonder what happens if you die without a will?
Lawyers' Professional Indemnity Company
English
This resource is from a private source outside Alberta. Learn more here.

Audio Having “The Talk” Making plans for life.
Caregiving Matters
English

 

The following resource is not available online. The link below will give you an overview of the resource, and you can find the full text at libraries across Alberta. For more information about using these libraries, see the Educating Yourself: Legal Research Information Page.

For information about updating your planning documents after separation or divorce, see the following resources.

Web Should I execute a new will after separation or divorce in Alberta?
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Important to update your estate plan after divorce
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Changing your Estate Plan after separation
Kirk Montoute LLP
English
This is a private source. Learn more here.
Before you begin: Understanding capacity

Before you begin planning for death, you need to understand the concept of “capacity” (also called “mental capacity”).

As long as you have capacity, you can still plan for death. You can still sign the legal documents that deal with your property and state who will be in charge of settling your affairs after you die.

Once you have lost capacity, it is too late. You can no longer sign the legal documents.

The legal options described on this Information Page are only available to people who still have capacity. For information about the options available for people who have already lost capacity and did not complete any legal documents about planning for death before they lost capacity, see the Caring for and Decision-Making for a Family Member Information Page.

Be Aware

If a person has already lost capacity, any legal document that he or she signs will not be valid.

What is capacity?

The term “capacity” refers to the ability (or inability) to make decisions.

In general, there are 2 parts to mental capacity:

  1. The ability to understand the nature of a decision. This includes understanding all of the information that is relevant to a particular decision.
  2. The ability to understand the consequences of making a decision. That is, a person with capacity would understand what could happen as a result of making a certain decision.

Legally, mental capacity is a clear concept: at any given moment, you either have capacity, or you do not.

Be Aware

In Alberta, the law assumes everyone 18 or older has mental capacity, unless it is shown otherwise (usually by a doctor’s opinion or a judge’s decision).

The capacity “continuum”

Although the law treats capacity as a clear concept, we can see in everyday life that capacity is often not so obvious.

A loss of capacity may be clear and sudden. For example, if someone was in an accident and is now in a coma. In such a case, it is clear that that person cannot make decisions for themselves.

However, a loss of capacity will often be less clear and more gradual. For example, in the case of dementia.

With some conditions, capacity can vary or come and go. In other words, a person can flip back and forth between having capacity and not having capacity. This is especially true with older adults, due to factors such as:

  • the effect of medications and/or forgetting to take them;
  • diabetes and fluctuating blood sugar levels;
  • exhaustion;
  • time of day; and
  • alcohol or drug use (especially when combined with illness and/or medication).

In other words, capacity is more of a range (also called a “continuum”). At one end, there is the clear capacity to make a decision. At the other end, there is the clear incapacity to make a decision. In between, there is a range of “more” or “less” capacity.

Even when one does “technically” have capacity, there is a range of abilities depending on the kind of decision that needs to be made. For example, the capacity required to write a Will is quite different from the capacity required to decide whether or not to take an exercise class. Also, a person’s capacity can change over time—especially when a person is suffering from a disease such as dementia.

Capacity is not about vulnerability or labels

Capacity is about understanding. It is not about being at risk or in need of care. Nor is capacity about labels such as: “old,” “disabled,” or “mentally ill.” It is very important to understand this difference.

For example:

  • just because you are 94 years old does not mean that you do not have capacity;
  • just because you have a disability does not mean that you do not have capacity;
  • just because you have been diagnosed with a mental illness does not mean that you do not have capacity;
  • just because you live alone and you are often quite ill does not mean that you do not have capacity; and
  • just because you have some memory loss does not mean that you do not have capacity.

Capacity refers only to the ability (or inability) to make decisions.

More information about capacity

For more general information about capacity, see the following resources.


Web Understanding Legal Capacity In Alberta
Kahane Law Office
English
This is a private source. Learn more here.

Video Understanding Legal (Mental) Capacity
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.

Web Grandma's will is pretty unpopular. Was she too old to make a will?
Estate Law Canada
English
This is a private source. Learn more here.

Web When is a doctor's opinion on capacity required?
Estate Law Canada
English
This is a private source. Learn more here.

Video Brain Injury and Mental Capacity
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.
Family Violence

 

PDF Mental Capacity and Elder Abuse
Centre for Public Legal Education Alberta
English

PDF La capacité mentale et l'abus fait aux ainé-e-s
Centre for Public Legal Education Alberta
French
What happens when a person without capacity signs legal documents?

Capacity is a tricky issue, and the law does not always require that capacity be tested. As a result, sometimes planning documents are signed by a person who does not have the capacity to do so.

This can happen by accident. The person signing the documents may not realize that he or she does not have capacity. Or, a family member or a loved one who is trying to help might mistakenly believe that the person does have capacity.

However, sometimes it is not an accident. For example: the people involved may know that capacity has been lost, but they may still decide to go ahead, even though they know it is not appropriate.

At other times, there may even be bad intentions. For example: a family member or loved one may try to force someone who has lost capacity to sign a legal document, in order to get control over their estate or other property.

If a person who does not have capacity signs a legal document, a court can declare that document invalid.

Court battles are expensive and time-consuming, and they can destroy family relationships. If you know that the person who is supposed to sign the document does not have capacity, it is not wise to go ahead anyway. You can get into serious legal trouble for doing so.

Family Violence

Forcing someone to sign a document can be abuse and can lead to criminal charges. This is true regardless of the age and capacity of the person signing. For more information, see the Elder Abuse Information Page.

If a person’s capacity is uncertain, that person should be tested by a medical professional. Contact his or her family doctor. You may also wish to learn about formal Capacity Assessments under the Adult Guardianship and Trusteeship Act: see the Caring for and Decision-Making for a Family Member Information Page.

Organ and tissue donation

Part of planning for death is thinking about organ and tissue donation. If there comes a time when you can no longer use your organs, and someone else could, you might wish to give that gift.

If you put your request in your Will, it may only become known after it is too late. So, to donate organs and tissue when you die, the law requires you to sign the necessary legal documents while you are still alive.

Be Aware

If you plan to donate your body to science, you cannot also donate internal organs. For more information, see the “Donating your body to science” section below.

There are 3 ways to make your wish to be an organ/tissue donor known:

  1. You can sign the back of your Alberta health care card.
  2. You can register as a donor with the Alberta Organ and Tissue Donation Registry.
  3. You can include your organ donation wishes in your Personal Directive.

You may wish to use all 3 of these options, which are explained in more detail below.

If you want to donate organs and tissue you can start by signing the back of your Alberta health care card. Your signature must also be witnessed. Most people always carry their health care card with them, so if you are near death and in the hospital, your wishes will be discovered while donation can still be arranged. Signing the back of your health care card will not affect your medical care. You will get whatever treatment you need, and every effort will be made to save your life before donation is even considered.

You can also sign up to be an organ and​/or tissue donor on the Alberta Organ and Tissue Donation Registry. Then health care professionals will know about your wish to donate, even if they do not have quick access to your health care card.

However, it is also important to include organ donation wishes in your Personal Directive. A Personal Directive is a document that gives someone else the legal power to make your personal decisions if you ever become unable to make those decisions for yourself. Personal decisions include health-related decisions. Putting your donation wishes in your Personal Directive is often helpful for family members and other loved ones. They may not have seen your health care card, or know that you signed the registry. They would feel more comfortable knowing for certain that making a donation is what you really wanted.

Also, when the time comes to make the decision, your family members and loved ones will be asked to answer medical and personal history questions as part of the donation screening process. They will also be asked to sign an organ and tissue donation consent form. If they disagree with the donation, they may refuse to answer important questions. This would make the donation impossible. As a result, it is a good idea:

  • to have your wishes be very clear in your Personal Directive, and
  • to talk to your loved ones about your wish to donate.

For more information about Personal Directives, see the Planning for Illness Information Page.

Be Aware

If a Personal Directive is in effect, the Agent(s) can only agree to donation if that Personal Directive contains clear instructions that allow the Agent(s) to do so. This is a requirement of section 15 of Alberta’s Personal Directives Act.

For more information about organ and tissue donation, see the following resources.


Web Alberta Organ and Tissue Donation Registry
Government of Alberta
English


Web Becoming a Donor
Government of Alberta
English



Video Alberta Organ Donation – Sharing the Gift of Life
Legal Education Society of Alberta
English
Donating your body to science

Universities across Canada accept body donations for medical research and teaching medical students. Many universities require pre-registration with consent of the donor. However, some may accept consent by the Personal Representative.

Be Aware

You may not be able to donate your body to science if you are also an organ donor.

For more information, see the following resources.

PDF Planning Your Own Funeral in Alberta
Centre for Public Legal Education Alberta
English
See p. 11-12.



Web Body Donation Program
University of Calgary
English
Use the links on the left of the page for more information.

Web Body Donation Program: Frequently Asked Questions
University of Calgary
English

Web Anatomical Gifts Program
University of Alberta
English

Web Anatomical Gifts Program
Alberta Funeral Services Regulatory Board
English
Wills: The basics

What a Will is

A Will is a legal document that says what will happen to your “estate” after you die. Your estate might be all of your property, or it might only be some of your property. For more information, see the “Estates: The basics” section below.

When you write a Will, you are called the “Testator.”

In your Will you also name your Personal Representative. This is the person who will be responsible for managing your estate after you die. This includes:

  • locating the assets;
  • paying debts and funeral costs; and
  • distributing the estate property to the beneficiaries.
Be Aware

Alberta Wills can only deal with property that is in Alberta. If you have property that is located in another province, territory, or country, you will have to make sure that you write a Will that will be valid there. For more information about this issue, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

Who Wills are for

Making a Will is important for every adult in Alberta, regardless of age. “Adult” is defined as a person who is aged 18 or over. However, a person under the age of 18 can also make a Will if he or she:

  • has a spouse or an Adult Interdependent Partner;
  • is a member of the military (as defined in the National Defence Act); or
  • has been authorized by a court order.
Be Aware

Wills do not work in the same way for Status Indians. Also, there is a law that can affect what goes into the Will of a person who lives on-reserve, whether or not that person has Status. For more information, see the “Aboriginal matters and on-reserve considerations” section below.

The issue of capacity

If you use a lawyer

If you complete a Will with the help of a lawyer, the process includes a look at capacity.

Whenever a person goes to a lawyer’s office to sign a Will, the lawyer conducts a test to ensure that the person understands what he or she is signing at that moment. The lawyer also conducts a test to help ensure that the person is not being forced to sign the Will.

However, a lawyer is not a doctor. The lawyer can only determine capacity at that very moment.

For example:

  • If the person has dementia and was having a “good” day, the lawyer would have no way of knowing this. The lawyer would see only the capable person that exists at that moment.
  • If the lawyer feels that the person in question does not have capacity at that moment, the lawyer will not allow that person to sign the Will. Again, the lawyer can only assess that moment in time.

Lawyers do not sign any kind of medical documents indicating that the person has “lost” capacity. Also, if a lawyer refuses to let the person sign a document, that should not be taken as the final word about that person’s capacity in general.

If you do not use a lawyer

If you do not use a lawyer, there is no check for capacity included. For signing a Will, the law does not require that a person’s capacity be assessed first.

If capacity is uncertain

If a person’s capacity is uncertain, that person should be tested by a medical professional. Contact his or her family doctor. You may also wish to learn about formal Capacity Assessments under the Adult Guardianship and Trusteeship Act: see the “Getting capacity assessed” section on the Process tab of this Information Page.

How a Will is completed

In Alberta, there are 2 ways to complete a Will:

  1. a “formal” Will; or
  2. a “holograph” Will.

A formal Will is all typewritten or printed from a computer. This kind of Will must be signed by the Testator in the presence of 2 witnesses. Each of the witnesses then signs the Will in the presence of the Testator. There are also very specific rules about who can be a witness. For example: a beneficiary cannot be a witness.

A holograph Will is completely written in the Testator’s handwriting. Holograph Wills do not require any witnesses.

Be Aware

Not all provinces or territories allow holograph Wills. If you have property in other provinces or territories that you want to leave to someone in your Will, be sure you find out the requirements for Wills in that other province or territory.

How Wills work

A Will only takes effect when the Testator dies. This affects things in 2 ways.

First, any bequest made in a Will is not given to the beneficiary until the Testator dies. For example: if you leave a piece of furniture to your nephew, that piece of furniture will not “belong” to your nephew until you die. This means that:

  • you can still use it while you are still alive;
  • your nephew does not have the right to come and take it while you are still alive; and
  • you can still sell it before you die if you want to.

Second, you can change your mind at any time before your death, as long as you still have capacity. If you want to rip up your old Will and write a new one, you can do that.

For more information about a Will not taking effect until the Testator’s death, see the following resource.

Web Mom's in a nursing home; can we sell her house and divide the money?
Estate Law Canada
English
This is a private source. Learn more here.
Be Aware

If the Testator had a Personal Directive and/or Power of Attorney that was in effect before he or she died, the Agent and Attorney must stop making decisions when the Testator dies. After death, all decisions are made by the Personal Representative.

What you can and can’t put in your Will

There are many misconceptions about what can and cannot go in a Will.

For example, many people believe that they must leave property to family members. This is not necessarily true: you only need to provide for family members if those family members meet the legal definition of being “dependent” on you.

For more information about “disinheriting” someone in your Will, see the following resources.




Web Can I leave my child out of my Will?
Estate Law Canada
English
This is a private source. Learn more here.

Web Can I cut my spouse and kids out of my will by leaving them a dollar?
Estate Law Canada
English
This is a private source. Learn more here.


Web Help Disinherit the Black Sheep
Advisor Group
English
This is a private source. Learn more here.


Video Disinheritance
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.
Be Aware

Disinheriting a child in your Will is a serious decision and must be done carefully. He or she may try to challenge the Will in court, which can cause many family problems after you are gone.

There are also rules about how you can leave property to minors. For information about this, see the following resources.

Web Can a minor inherit money or property?
Estate Law Canada
English
This is a private source. Learn more here.

Web At what age should children inherit money?
Estate Law Canada
English
This is a private source. Learn more here.

Web Should Your Children be Life Insurance Beneficiaries?
Kanetix Ltd.
English
This is a private source. Learn more here.

Web The Importance of Trusts in Wills for Minor Beneficiaries
Kahane Law Office
English
This is a private source. Learn more here.

Web Young Persons and the Law
Centre for Public Legal Education Alberta
English
See “Other situations.”

Web Assets of a minor
Government of Alberta
English

If you make a Will that does not follow the law, it can be struck down by a court. The following paragraphs explain this a bit more.

As mentioned above, you must provide for family members if they are dependent on you. If you do not, those family members can apply to court to get financial support from your estate.

If someone is not a dependant, you can choose to not leave anything to that person. In this case, you can include information in your Will about why you are doing so. This will help the person to understand and he or she may be less likely to challenge the Will. Also, if the question does go to court, the judge will be aware of your reasons.

If you are married and the home you live in is registered in your name only, you cannot just leave that property to someone other than your spouse. This is because of Alberta’s Dower Act, which gives your spouse a life-long interest in the use of the family home. For more information on dower rights, see the following resources.

Audio/Web Rights to your home under the Dower Act
Calgary Legal Guidance
English

Web Matrimonial Property
Centre for Public Legal Education Alberta
English
See “Dower Rights.”

Web Dower Act can change your plans
Estate Law Canada
English
This is a private source. Learn more here.

Web Re-visiting the Dower Act - or, what happens to the family house
Estate Law Canada
English
This is a private source. Learn more here.

You cannot give a bequest that is against the law or against “public policy.”

  • Something that is against the law is quite easy to understand. For example: it is against the law to give away something that does not belong to you.
  • Something is that is against public policy is different. It may not actually “break” any laws, but it does not follow the spirit and purpose of the law. Or it may not fit with the general social and moral values of our society. For example, you might decide to leave money to a spouse but set a condition on the gift. The condition says that he or she cannot enter into another romantic relationship for the following 15 years after your death. This condition would be struck down in court as against “public policy.”

For more information, see the following resources.

Web Testators can't ask the impossible or illegal in their wills
Estate Law Canada
English
This is a private source. Learn more here.

Web What Does Public Policy Have To Do With My Will?
Nelligan O'Brien Payne LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web Discrimination in Wills: How Far Can it Go?
Ontario Bar Association
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

Why you need to choose your Personal Representative wisely

Although a Will is meant to be helpful, it can be misused. Your Personal Representative will have access to all of the details of your estate. He or she will be making all of the decisions about your estate and what happens to your body. He or she can use that position to take assets, or to distribute your estate in a way that is different than you planned. This sometimes happens if there is family fighting going on.

As a result, you will want to choose someone who is trustworthy, reliable, competent, and who understands how to handle money. You can also name a “trust company” as your Personal Representative. A trust company will take a percentage of the estate as payment.

For more information, see the following resources.

PDF Making a Will
Centre for Public Legal Education Alberta
English
See p. 16-18.

Web Choosing a Personal Representative - Executor
Galbraith Law
English
This is a private source. Learn more here.

Web Some tips on deciding who to appoint as executor and trustee
Estate Law Canada
English
This is a private source. Learn more here.

Web Have I made the right choice to be my executor?
Estate Law Canada
English
This is a private source. Learn more here.

Web 15 basic (but important) points about executors
Estate Law Canada
English
This is a private source. Learn more here.

Web What To Consider When Choosing An Estate Trustee
Huffington Post Canada
English

PDF Planning for the Future: Wills, Personal Directives, Enduring Powers of Attorney
Nigro Manucci
English
This is a private source. Learn more hereSee p. 2.

PDF Wills Information Package
Turning Point Law
English
This is a private source. Learn more hereSee p. 9.

Web Can I appoint my lawyer as my executor?
Estate Law Canada
English

Web Hiring a trust company as agent
Estate Law Canada
English

Web What does a trust company charge to administer an estate?
Estate Law Canada
English
This is a private source. Learn more here.
Be Aware

If you name a U.S. citizen as your Personal Representative, there is a risk of exposing your estate to U.S. tax liability. If you plan to name an American as your Personal Representative, see a trust company or accountant for advice.

Make sure your Personal Representative understands the job

Sometimes, a Personal Representative misuses his or her position because he or she does not understand exactly the extent of his or her powers, and what is not within the powers that were given. Before you name someone, make sure the person who will be your Personal Representative understands what their responsibilities are.

For more detailed information on the role of a Personal Representative, see the following resources and the Dealing with a Death in the Family Information Page.

PDF Being a Personal Representative
Centre for Public Legal Education Alberta
English

More information

For more detailed information about making a Will, see the Process tab of this Information Page and the following resources.

PDF Making a Will
Centre for Public Legal Education Alberta
English

Audio/Web Things to consider when making a will
Calgary Legal Guidance
English

Web New Wills Law for Alberta
Self-Counsel Press
English

Web Wills, Personal Directives and Power of Attorney
Student Legal Services of Edmonton
English

Web Planning ahead for your will
Government of Alberta
English


PDF Preparing a will
Canadian Bar Association
English

Web Top 5 Misconceptions about Wills
Patriot Law Group
English
This is a private source. Learn more here.

Web Do I Need a Lawyer to Write a Will?
Self-Counsel Press
English
This is a private source. Learn more here.

Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
Start on p. 23.

PDF Wills Information Package
Turning Point Law
English
This is a private source. Learn more here.

French resources:

PDF Faire son testament
Canadian Bar Association
French

PDF Guide juridique pour les personnes aînées du Nouveau-Brunswick
Association des juristes d'expression française du Nouveau-Brunswick
French
This resource is from outside Alberta. Learn more hereSee p. 33-40.

Web Le testament, la procuration et les directives personnelles en Nouvelle-Écosse
Association des juristes d'expression française du Nouveau-Brunswick
French
This resource is from outside Alberta. Learn more here.

The following resource is not available online. The link below will give you a preview of the article, and you can find the full article at libraries across Alberta. Please note that this article is a section in a whole book. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Charitable Donations at Death (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

For information about recent changes to the laws about making a Will, see the following resources.

PDF Wills and Succession Act - Summary of Changes
Government of Alberta
English

Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
See p. 9-13.

Web New Wills and Succession Act: What has changed?
Government of Alberta
English

Web Estate Administration Act : Significant Changes in the Law
Centre for Public Legal Education Alberta
English


PDF Legislation Alert: The New Wills and Succession Act
Field Law
English
This is a private source. Learn more here.

Web The New Wills and Succession Act: How Does it Affect You?
Vogel LLP
English
This is a private source. Learn more here.

PDF The New Wills and Succession Act
Government of Alberta
English
This resource can be a challenge to read. Learn more here.
Estates: The basics

The term “estate” refers to property that you own at the time of your death and that will be passed to others through your Will. This process is called “passing through” your Will, or being “distributed through” your Will. The property in your estate is first used to pay debts and taxes, and then it is distributed according to the instructions in your Will.

There are several kinds of property that are not included in your estate:

  • property that you held in “joint tenancy” with one or more other people (see the “Planning for death with joint property” section below);
  • life insurance policies where you have named a beneficiary; and
  • retirement savings plans (such as pension plans, RRSPs, TFSAs, and RRIFs) that have a named beneficiary.

Having a “named beneficiary” means that you have completed a separate “designation of beneficiary” form for that asset. On this form you state who will receive a particular asset when you die. Then, when you die, the asset goes directly to that person: it does not pass through your Will and does not form part of your estate. For more information, see the following resources.

Web Beware the Beneficiary Designation!
Persona Law Group
English
This resource is from a private source outside Alberta. Learn more here.

Web Designating a Beneficiary
Investing For Me Education Incorporated
English
This is a private source. Learn more here.
Be Aware

The kinds of assets that are allowed to pass outside of your Will are determined by law. You do not get to decide which assets you can sign a designation of beneficiary form for—the law does that.

However, if you want that asset to pass through your Will, you can either:

  • name your “estate” as the beneficiary on the designation of beneficiary form; or
  • clearly mention that asset in your Will. If your Will is dated more recently than the last beneficiary form, the asset may go through your estate.
Tip

It is best to be absolutely clear on who gets these kinds of assets. It is a good idea to avoid contradictions between the current designation of beneficiary forms and what is written in the Will.

Planning for different kinds of property

As mentioned above, you can plan for which property will be included in your estate and which will not. Some kinds of property may be affected by other laws (such as tax law). You will need to understand this so that you can make the decisions that are best for you.

A few examples of these kinds of property are listed below.

“Capital property” and the “capital gains” tax

Every year in Canada, residents must pay income tax. One type of income is money earned from the sale of property or investments. This is called “capital gains.” The most common types of property that attract capital gains are stocks, bonds, precious metals, and real property.

Many people buy these kinds of property (also called “capital property”) as a form of investment. In other words, they expect the value of the property to increase over time, and they want to later sell the property to get that profit. However, that increase in value is taxed. This is the capital gains tax.

For example:

  • Years ago, you and your spouse bought a little cottage.
  • You paid $125,000 for it.
  • The cottage was not your primary home, but you and your family used it every summer.
  • You now sell it for $350,000.
  • The difference in value (also called the “profit” or “capital gain”) is $225,000.
  • Because you sold the cottage, you will have to deal with the “capital gains” tax on the $225,000 difference in value. Specifically, a portion of the increase will be taxed (see the resources listed below for current rates).

When you are planning for what should be done with capital property upon your death, you will have to keep that potential tax bill in mind.

These issues can be quite complicated. You may want to consider asking an accountant and/or a lawyer for advice. For more information, see the Working with a Lawyer Information Page.

For more information on the capital gains tax, see the following resources.



Web Capital gains explained
MoneySense
English
This is a private source. Learn more here.

Web Principal residence and other real estate
Government of Canada
English

PDF Capital Gains Exemption - Planning Techniques
Manulife Financial
English
This is a private source and can be a challenge to read. Learn more here.

Web Tax traps for divorcing clients
Advisor Group
English
This is a private source. Learn more here.

Web Money Talk
Family Law Centre
English
This is a private source. Learn more here.

Web Transfers of capital property
Government of Canada
English

French resources:

Web Résidence principale et biens immobiliers
Government of Canada
French


Web Transferts d'immobilisations
Government of Canada
French

The “principal residence” exemption

There is an exception to the capital gains tax. It is for the principal residence. For this to apply, the property you owned must have been your “principal residence” for every year you owned it. Then, when you sell it, you do not have to report the sale on your income tax return.

When planning for death, it is important to understand this exemption, especially if you own more than one home, and/or divide your time between homes.

For more information about the principal residence exemption, see the following resources.

Web Principal residence and other real estate
Government of Canada
English

Web Résidence principale et biens immobiliers
Government of Canada
French

Web Your Principal Residence and Taxes
Centre for Public Legal Education Alberta
English

Web The Principal Residence Exemption
Dean C. Paley, Professional Corporation
English
This is a private source. Learn more here.

Web Principal residence rules
Raymond Chabot Grant Thornton
English
This is a private source. Learn more here.



PDF The principal residence exemption – a powerful planning tool
Sun Life Assurance Company of Canada
English
This is a private source. Learn more here.

Registered Retirement Savings Plans (RRSPs) and Registered Retirement Income Funds (RRIFs)

You may have RRSPs and/or RRIFs. As described in the “What the words mean” section above, RRSPs and RRIFs are funds that have not yet been taxed. Instead, the tax is owed when the money gets taken out. This means that there may be taxes owing on your RRSPs and/or RRIFs when you die.

If you and/or your spouse (or common-law partner) have locked-in RRSPs and RRIFs, you can transfer all of them or a portion of them between each other. There are no taxes owing on such “spousal transfers.” The same is true for transfers to dependent children or grandchildren.

On the other hand, if an RRSP or RRIF is left to someone other than a spouse, common-law partner, or dependent children or grandchildren, the taxes owing will be taken off before any money is given to the beneficiary.

For example:

  • At your death, your RRSP is worth $350,000.
  • You designated your spouse as your beneficiary.
  • The RRSP can be transferred to him or her, tax-free.
  • Your spouse will then have an RRSP valued at $350,000.

On the other hand:

  • At your death, your RRSP is worth $350,000.
  • You designated your cousin as your beneficiary.
  • The taxes owing are $87,500.
  • Your cousin will get $262,500.

For more information about RRSPs, see the following resources.

Web Registered Retirement Savings Plan (RRSP)
Government of Canada
English

PDF Answering your RRSP questions
BDO Canada LLP
English
This is a private source. Learn more here. See p. 14-15.

Web Designating a Beneficiary
Investing For Me Education Incorporated
English
This is a private source. Learn more here.


PDF Designations on RRSPs, RRIFs, and TFSAs
Interior Savings
English
This is a private source. Learn more here.

PDF Estate Planning for RRSPs
Advisor Group
English
This is a private source. Learn more here.

Web What happens when an RRSP annuitant dies
Advisor Group
English
This is a private source. Learn more here.

For more information about RRIFs, see the following resources.

Web Registered Retirement Income Fund (RRIF)
Government of Canada
English

Web Death, Divorce and Bankruptcy
Investing For Me Education Incorporated
English
This is a private source. Learn more here.

Web What happens to your RRIF when you die
Ontario Securities Commission
English

Web Designating a RRIF Beneficiary
Investing For Me Education Incorporated
English
This is a private source. Learn more here.

PDF Designations on RRSPs, RRIFs, and TFSAs
Interior Savings
English
This is a private source. Learn more here.

For examples of how these issues have come up in recent years, see the following news articles.



Web Death and taxes
The Globe and Mail
English

French resources:

Web Régime enregistré d'épargne-retraite (REER)
Government of Canada
French

Web Fonds enregistré de revenu de retraite (FERR)
Government of Canada
French


Employment pension plans

There are various kinds of pension plans through employers, and each has different kinds of benefits upon death. Depending on who you leave your death benefits to, there may or may not be taxes owed.

For more information about any employment pension plans that you have, contact your pension plan administrator.

Life insurance

With life insurance, you will often have named a “designated beneficiary.” This means that you have completed a separate “designation of beneficiary” form for the insurance. On this form you stated who would receive the benefit when you died. The insurance proceeds would then go directly to the person you named as your “designated beneficiary.” It would not pass through your Will.

For example:

  • You have a life insurance policy for $300,000.
  • You named your sister as the beneficiary.
  • When you die, your sister would get the $300,000.

However, you can also name your “estate” as the beneficiary. Or, if you name no one, you estate will automatically be the beneficiary. If the estate is the beneficiary, the money can be used to pay any debts and taxes that you owe at the time of your death. It is not until after all of the debts and taxes are paid that any money from the life insurance proceeds can be left to anyone.

For example:

  • You have a life insurance policy for $300,000.
  • You named your estate as the beneficiary.
  • In your Will, you left your sister $300,000.
  • When you die, your estate would get the $300,000.
  • Once all of your debts and taxes are paid, your estate only has $100,000 left.
  • As a result, your sister will not be getting $300,000.
  • How much money your sister will get depends on many other things, including who else is left gifts under the Will, the value of those other gifts, and the “marshalling rules” under the Estate Administration Act. This can get quite complicated, and the people involved may need to get advice from a lawyer.

For more information, see the following resources.


Web How Can Life Insurance Supplement an Estate Plan?
Hull & Hull LLP
English
This is a private source. Learn more here.

Businesses

If you are a business owner, your estate plan should cover both your personal assets and your business assets. Estate planning for businesses is very complicated because it needs to address many additional issues, including business succession and complex tax issues. You may want to consider asking an accountant and/or a lawyer for advice. For more information, see the Working with a Lawyer Information Page and the Community Legal Resources & Legal Aid Information Page.

For more information about estate planning for business owners, see the following resources.

PDF Estate planning strategies for small business owners
Canadian Imperial Bank of Commerce
English
This is a private source. Learn more here.

PDF Estate planning guide: A guide for business owners
Sun Life Assurance Company of Canada
English
This is a private source. Learn more here.

Video Small Business Succession Planning
Kahane Law Office (via YouTube)
English
This is a private source. Learn more here.

Web Importance of Wills and Estate Plans for Business Owners
Kahane Law Office
English
This is a private source. Learn more here.

Web Taxes and succession planning
The Globe and Mail
English

Presentation Canada: Estate Planning For The Business Owner
Mondaq
English
This is a private source. Learn more here.

Web The basic estate planning documents that everybody needs
Estate Law Canada
English
This is a private source. Learn more hereSee documents 4-7.

Web Estate planning if you own a business
Ontario Securities Commission
English

Web Succession and estate planning
Raymond Chabot Grant Thornton
English
This is a private source and can be a challenge to read. Learn more here.

Farms

Estate planning when you own a farm is very complicated. This is because it needs to address many additional issues, including business succession and complex tax issues. You may want to consider asking an accountant and/or a lawyer for advice. For more information, see the Working with a Lawyer Information Page and the Community Legal Resources & Legal Aid Information Page.

For more information about estate planning for farm owners, see the following resources.

PDF The family farm and Will planning: Addressing farm succession in your Will
Royal Bank of Canada
English
This is a private source. Learn more here.

PDF Tax Planning for the Family Farm
BMO Financial Group
English
This is a private source. Learn more here.

Web Taxing the farm
MoneySense
English
This is a private source. Learn more here.

Web Use of Trusts in Farm Estate Planning
Government of Alberta
English

Web Basics of farm rollover
Estate Law Canada
English
This is a private source. Learn more here.

Presentation Tax Planning for Farming Course: Succession Planning: Use of Trusts and Tax Issues
Miller Thomson LLP
English
This is a private source. Learn more here.

PDF Estate Planning Checklist for Farm Families
Government of Saskatchewan
English
This resource includes a good checklist of things to consider, but much of the information and contacts are specific to Saskatchewan. Be sure you learn about the law in Alberta too.

PDF Estate Planning for the B.C. Farmer
Government of British Columbia
English
This resource is from outside Alberta. Learn more here.

Digital assets

For information about how to plan what happens to your online information and accounts when you die, see the “Death in the digital age” section below.

Pets

For many people, pets are members of their family. However, the law does not view pets as family members. Legally speaking, pets are property. When you are planning your estate, you will want to include your wishes about who should get your pets when you die. You may even wish to leave funds to take care of the pets until their own death.

For more information, see the following resources.

Web How to write a ‘fur kid' into your will
The Globe and Mail
English

Web Your Estate Planning Should Include Pets
Huffington Post Canada
English

Web My pets are my children - how can I look after them in my Will?
Estate Law Canada
English
This is a private source. Learn more here.

Web Animal Law 101 Part I: Estate Planning for Your Pet
Gordon Scott Campbell
English
This is a private source. Learn more here.

Web Pets in Estate Planning
Financial Advisors Association of Canada
English

Web Leaving Your Estate To A Pet
Doak Shirreff Lawyers LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web Estate Planning and Animals – Things May Be Changing!
Ontario Bar Association
English
This resource is from outside Alberta. Learn more here.

Web Estate Planning Is Going to the Dogs (Cats, Birds .......)
Susan B. Taylor & Associates
English
This resource is from a private source outside Alberta. Learn more here.

PDF Providing for Man’s Best Friend – Pet Trusts
Cambridge LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web I Love My Cat More Than You: Animals as property or sentient beings
WEL Professional Corporation
English
This resource is from a private source outside Alberta. Learn more here.

Property that is outside Alberta

If you want to plan for property that is in another province, territory, or country, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

What happens if there is no Will

If you die without a Will, someone with an interest in the estate will have to apply to the Court for a “grant of administration.” Through this process, the Court will appoint a Personal Representative to manage and distribute the estate. This will cost both time and money.

Once a grant of administration is given, the estate of the deceased will be distributed by that Personal Representative as required by the Wills and Succession Act. For more information about this, see the Dealing with a Death in the Family Information Page.

Planning for death with joint property

What is joint property?

The term “property” means both:

  • “personal” property, such as bank accounts or vehicles; and
  • “real property,” such as land, a house, or a condominium.

When 2 or more people own all of an asset together, that property is “joint property.” You can also say that the property is held in “joint tenancy.” The people who own it are called “joint tenants.”

Joint tenancy is a special legal concept that results in all of the joint tenants owning all of the property. When 2 people own something in joint tenancy, they both own all of it (not just their “share”). They each have the right to deal with all of it, any time they want (although sometimes there can be additional legal steps required).

For example, if you and your child have a joint bank account, your child has the right to remove all of the money from the account without saying anything to you about it. That would be perfectly legal. Your child also could have the bank statement sent to him or her instead of you, or choose to have the statements emailed instead. If that occurs, you may never know what is going on with your bank account. Also, a joint tenant can force the sale of your property while you are still alive (even if that is not what you want).

If there are 2 joint tenants and one dies, the other joint tenant becomes the sole owner of the property. The property would not pass through the deceased’s Will, even if they wanted it to.

Be Aware

“Joint property” is very different from “tenancy in common” (which is another way that 2 or more people can hold property). With “tenancy in common,” 2 or more people own an asset together, but each owns only a portion. For example: land. Under tenancy in common, each of the tenants owns a portion (or share) of the value of the land. Each tenant can only deal with his or her share of the property. Similarly, if one of the tenants in common dies, that person’s portion does not automatically go to the other owner(s). Instead, that portion goes through the Will of the deceased. For more information, see the following resources.

Web What happens when a tenant-in-common dies?
Estate Law Canada
English
This is a private source. Learn more here.

Web Joint tenants vs. tenants-in-common
Estate Law Canada
English
This is a private source. Learn more here.

The issue of capacity

For a person to transfer property into joint names, he or she must have capacity. However, the law does not require that capacity be tested first. Also, the organizations involved (such as banks or the Land Titles Office) do not ask for proof of capacity.

How it is completed

To transfer property into joint names, the property owner must fill out certain paperwork. Each organization (such as a bank or the Land Titles Office) will have its own paperwork for completing this process. Each asset also has its own set of paperwork. For example, if you have a chequing account and a savings account with the same bank, you would need to fill out separate paperwork for each account. The asset will then be transferred into joint tenancy, and all of the joint tenants will own all of the property.

How joint property is used when planning for death

Sometimes people use joint property as a way of leaving property to a loved one. As soon as you transfer a piece of property into joint names, both of you own all of the property. When you die, your name can be removed from the title (the legal document describing the property) and the other joint tenant becomes the sole owner. The property does not pass through your Will. If the other joint tenant died before you did, you would immediately become the sole owner.

Because of this, property that is in joint names does not need to be probated. (Probate is explained in more detail in the “The issue of probate” section below.) As a result, people might use joint tenancy as a way of trying to avoid probate.

Be Aware

Being a joint tenant has serious legal consequences, both during your life and after. Before you transfer property into joint names, be sure you understand the rights and powers of joint tenants and be sure that is what you really want. Consider getting legal advice.

Thinking carefully before you do this

Although joint property can be convenient, it can easily lead to problems. We generally trust our loved ones, but sometimes we can be wrong to do so.

On your death, things may not happen as you wished. For example:

  • A mother transfers property into joint names with her daughter.
  • The mother asks her daughter to promise that she will divide the value of that property equally with her other siblings when the mother has died.
  • Although the daughter may promise to do so, once the property is entirely in her own name, she may be dishonest and choose not to divide the property at all.

Other problems may come up while both joint tenants are still alive.

First, one joint tenant could try to force a sale of the property. If your joint tenant thinks it would be best to sell the home, but you don’t want to, the joint tenant can apply to the court to force a sale of the house. A court could grant that request, even if you disagree. No matter who “wins” in court, the financial and emotional results could be devastating.

Second, joint property can be at risk for claims against either of the joint tenants. So, if your joint tenant goes bankrupt or gets involved in a matrimonial property claim, the value of your joint property may be used to pay for debts or the claims. You may not have any choice.

Before transferring property into joint names, you will want to be sure that you are right to trust this other person. Ask yourself: have they always treated you well? You may also wish to look into whether joint tenancy really is the best option for you. Perhaps the bank or your lawyer would have other suggestions.

Be Aware

Being a joint tenant has serious legal consequences, both during your life and after. Before you transfer property into joint names, be sure you understand the rights and powers of joint tenants and be sure that is what you really want. Consider getting legal advice.

More information

For more information about using joint tenancy when planning for death, see the following resources.

Web Joint tenancy as an estate planning tool – Pros and cons
Beacon Law Centre
English
This resource is from a private source outside Alberta. Learn more here.

Web The Pitfalls of Joint Tenancy
R. Trevor Todd
English
This resource is from a private source outside Alberta. Learn more here.

Web Joint Property Ownership: Problems and Pitfalls
Advisor Group
English
This resource is from a private source. Learn more here.

Web Understanding the Gift of Joint Ownership
Huffington Post Canada
English
The issue of probate

Probate is a court process to confirm that:

  • a Will is authentic (for example: not fake or forged);
  • a Will is legally sound (for example: it was not signed by a person who lacked the capacity to sign a Will); and
  • the person named in the Will as the Personal Representative has the authority to administer the Testator’s estate according to the terms of the Will (for example: the person who was named as Personal Representative still has capacity, and there is no other legal reason to not allow that person to be the Personal Representative).

To get probate, special forms must be submitted to the Alberta Court of Queen’s Bench Surrogate office.

When planning for death, many people make decisions that they hope will help them avoid probate. They believe that avoiding probate is a good thing. However, many people do not really know what probate is. Before you can make any decisions to try to avoid probate, it is important to understand what probate is and the many misconceptions about probate. The most common examples of these misunderstandings are described below.

Probate is not expensive in Alberta

Many people think that the probate process will cost the deceased’s family thousands of dollars. In Alberta, this is not the case. There is a range of court fees charged for probate: the larger the estate, the higher the fee. However, the highest fees (for estates over $250,000) are still less than $600. For a current list of fees, see the following resources.

Web Court fees
Government of Alberta
English
See “Surrogate matters.”

Web Beware the Beneficiary Designation!
Persona Law Group
English

PDF Court Fees & Waivers in Alberta
Centre for Public Legal Education Alberta
English
Be Aware

Other provinces, territories, or countries have different probate fees. In some places, it can be expensive. If property that passes through the Will is in another province, territory, or country, you will want to look into the laws of that jurisdiction. Then you can figure out how best to plan for what happens to that property when you die.

Not all Wills have to be probated

Whether or not a Will has to be probated depends on various factors, such as:

  • the value and nature of assets,
  • the complexity of the estate,
  • the number of beneficiaries,
  • the types of beneficiaries (for example: beneficiaries may be capable adults, dependants, or corporations), and
  • the policies of the agencies or financial institutions that hold the assets.

Certain assets don’t require probate, as they never become part of the estate. For example, if the Testator owned land or a house in joint tenancy with another person, the other joint tenant would only have to file an application in the Land Titles Office along with the Certificate of Death to become the sole owner. Similarly, if the Testator owned a bank account or vehicle in joint tenancy, the Certificate of Death is usually enough to transfer these to the surviving joint owner.

Also, RRSPs, RRIFs, pension plans, and insurance policies often name a beneficiary to receive the proceeds in case of the person’s death. If they have named beneficiaries, they do not form part of the estate and therefore do not require probate. Instead, the Personal Representative would give the Certificate of Death to the insurance companies and RRSP administrators, who would then pay the money to the named beneficiary. However, if the deceased named their estate as the beneficiary, then probate may be required.

On the other hand, if the estate includes land held only in the name of the Testator, probate will be required. Similarly, if the estate includes securities (such as stocks and bonds), or large bank accounts, the Personal Representative may have to apply for probate in order to transfer them. To find out more about this, your Personal Representative would check with the bank or transfer agent involved for each security in the estate, as they will each have different requirements.

Probate can be a good thing

In practice, many estates end up going through the probate process. Personal Representatives are often encouraged to have the Will probated. This is because probate confirms that the Will is valid. This can reassure everyone who is involved. For example, someone may wonder if the Will was signed under pressure from someone else. Or they may wonder if there was a more recent Will.

The Personal Representative could likely benefit from having the Will probated if:

  • there is any sign that there are questions about the legality of the Will; or
  • there could be disagreements about the terms of the Will.
Family Violence

Having the Will probated can also be helpful in situations of suspected or potential financial abuse. Not having probate can lead to more secrecy.

Probate does not necessarily take very long

Probate can take several weeks to several months. It depends on many different factors, such as:

  • if there are complications (such as missing documents or if the witnesses to the Will can’t be found);
  • the number of cases the Court is dealing with; and
  • whether there are any disputes among family members or beneficiaries.

A lawyer may be able to explain how to speed up the process. The Personal Representative can help speed up the process by providing accurate and complete information and filing the documents promptly and completely.

Death in the digital age

Every day, most people in Canada send multiple emails, both at work and at home. Similarly, every day millions of Canadians log onto their Facebook and Twitter accounts to check their newsfeeds. In other words, Canadians have embraced online communication.

The law, on the other hand, has not yet caught up. In particular, the question of “digital assets” remains unclear. When internet users die, they often leave sensitive personal information online, or online accounts that family members and friends may want to access or close.

Digital assets are a person’s electronic or virtual property such as:

  • emails,
  • digital photos,
  • videos,
  • tweets,
  • texts,
  • music,
  • e-books, and
  • online account information for websites or programs such as Facebook, LinkedIn, Instagram, bank accounts, store accounts, PayPal, and any others.

Digital assets can have a financial value. For example, an online tool or website may make money or cost the owner something. Or, digital assets may only have sentimental value. For example, the photos of a family member.

In Canada today, there is very little law about maintaining digital assets if something happens to the owner or account holder. As a result, the rules that govern who can use or deal with another person’s digital assets are usually just those found in the “Service Agreements” that users must agree to when setting up those accounts. Many of those agreements do not state what happens if the account holder becomes incapacitated or dies. Also, most of them do not have an option of naming a personal representative for that asset. For those service agreements that do deal with it, the policies and procedures are different for every account.

This can make it difficult when trying to plan ahead. This is especially true given that section 342.1 of the Criminal Code of Canada makes it a crime to use a computer service when you know that you are not authorized to do so.

For more information about steps you can take to plan for your digital assets when you die, see the Process tab of this Information Page.

Tip

Because there is very little law in this area, a Personal Representative may want to consider getting legal advice before attempting to access a deceased person’s digital assets.

For more information about digital assets, see the following resources.

Web How to plan your digital estate
TVA Publications
English
This resource is from a private source. Learn more here.

Presentation Understanding Digital Assets: Practical Approaches to Estate Planning and Administration
Alexander Holburn Beaudin + Lang LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web What Happens to my Facebook When I Die?
McConnan Bion O'Connor & Peterson
English
This resource is from a private source outside Alberta. Learn more here.

Web Managing digital assets – Preserving your social media legacy
Clark Wilson LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web Failure to plan for your digital assets can have consequences
AdvocateDaily.com
English
This resource is from a private source. Learn more here.

Web Estate Planning In The Digital Age
Siskinds Law
English
This resource is from a private source outside Alberta. Learn more here.

Web Prudent Estate Planning in the Digital Age
Snedden Hall & Gallop Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

Web Digital life after death: Practice tips for estate planning and administration
Fillmore Riley LLP
English
This resource is from a private source outside Alberta. Learn more here.

Web Digital Assets: Overlooked and Underappreciated
Fiduciary Trust Canada
English
This resource is from a private source outside Alberta. Learn more here.

Web Forgetting Digital Assets Like Facebook Can Create Lawsuits After Your Death
Forbes Media
English
This resource is from a private source outside Alberta. Learn more here.

For examples of how these issues have come up in recent years, see the following news articles.


Web What Happens to Your Digital Assets When You Die?
Huffington Post Canada
English

Web Death in the digital age: Are you prepared?
BBC
English
This resource is from outside Alberta. Learn more here.

 

For detailed reports about how Canadian lawyers and courts have addressed this issue, see the following resources. These reports can be a challenge to read. Learn more here.


Removing life support and doctor-assisted dying: The difference

A person may get an illness, or be in an accident, that leaves them facing a long and difficult process of dying.

In certain circumstances, the law may be able to help to with this.

  • Removing life support has been available for many years.
  • Doctor-assisted death is a new option that is still being developed.

To understand your planning options, you need to know the difference between removing life support and doctor-assisted death.

An example:

  • Imagine a person with a very serious terminal illness. This illness will slowly kill the person. There is no cure. It is just a matter of time.
  • At some point, this illness will cause the person to be unable to breathe on his or her own.
  • Because of this and other effects of the illness, life will get very difficult and very painful.
  • At some point, this person will have to be hooked up to a machine in order to stay alive. This is called “life support.”

Removing life support

The removal of life support (sometimes also called “pulling the plug”) refers to the process of letting nature take over. If the person in the above example can no longer breathe on their own, they can be allowed to die. The machines that are keeping them alive can be turned off. Or, he or she may never be put on the machines in the first place.

In other words: it is only medical intervention that will keep the person alive. Without the medical intervention, he or she will die immediately, or very shortly. It can be decided that the medical intervention should not be given.

Doctor-assisted death

Doctor-assisted death works differently. This occurs when a doctor actively helps the person die. Assume that the person in the above example can still breathe on their own. Left alone, without any medical intervention, that person would continue to live. Possibly for weeks, months, or even years. But perhaps that person does not want to wait until they can no longer breathe on their own. They know that life will only become more and more painful and that death is unavoidable. They want to choose to die before the suffering becomes unbearable. They want to die at a time of their choosing, and on their own terms.

In other words: without medical intervention, the person will continue to live. It is only with medical intervention that the person will immediately die.

For more information about planning for the removal of life support and doctor-assisted dying, see the following 2 sections.

Planning for the removal of life support (“pulling the plug”)

Sometimes, if a person is very badly injured, or becomes terminally ill, they may reach a point where they can only continue to live because they are put on machines that keep them alive. For example: a person may be on a machine that does their breathing for them. There may be a question about whether to continue this life support, or perhaps a question of whether to begin using life support at all.

You can plan for such a possibility. You can indicate whether you want to be kept on such “life support” machines, or that you will want to be removed from life support (this is sometimes also called “pulling the plug”).

These plans must be included in Personal Directives, which take effect while the person is still alive. These plans should not be included in the Will, as the Will only takes effect after death.

For more information about planning for the issue of life support, see the “Removing life support and doctor-assisted dying” section of the Planning for Illness Information Page.

Doctor-assisted dying

In Canada, it used to be illegal for doctors to help people end their own life (also called “commit suicide”). Under the Criminal Code of Canada, anyone who helped a person commit suicide could be charged with a crime. This included doctors.

However, in 2015, the Supreme Court of Canada (SCC) ruled that this section of the Criminal Code was unconstitutional, and it decided that doctor-assisted death should be allowed in certain circumstances. To make sure the practice was safe and fully considered, the SCC gave the federal government until June 2016 to make new laws about this topic.

The changes to the Criminal Code became law on June 17, 2016. As a result, it is now legal for doctors and nurse practitioners to help people end their own lives, if they follow certain conditions and safeguards. This means that medical assistance in dying (MAID) is available in Canada.

Who can get the help?

To be allowed to get medical assistance in dying, a patient must meet all of the following conditions. They must:

  • be eligible for health care (in other words, visitors to Canada are not eligible for MAID);
  • be at least 18 years old;
  • have the mental capacity to make health care decisions for themselves;
  • have a “grievous” (very serious) medical condition that is “irremediable” (cannot be reversed). This medical condition must also be in an “advanced state” of decline, which has resulted in their natural death being “reasonably foreseeable”;
  • be suffering enduring physical or psychological suffering that is intolerable to them, and that cannot be relieved by conditions that they find acceptable;
  • ask for MAID of their own choice (in other words, not as a result of outside pressure or influence); and
  • give “informed consent” to the MAID. This means the consent must be given after the patient has been given all of the medical information needed to make the decision (including information about all available treatments and options to lessen suffering).

As a result of these conditions, it is not possible to use a Personal Directive to plan in advance for MAID. For more information, see the following resource.

Web Provincial guidelines for medical assistance in dying
Estate Law Canada
English
This is a private source. Learn more here.

What kind of help is given?

There are 2 types of MAID available.

  1. The doctor or nurse practitioner prescribes a drug to the patient, and the patient then takes that drug on his or her own. This is often called “medically assisted suicide.”
  2. The doctor or nurse practitioner directly administers the drug to the patient (for example, with a needle). This is often called “voluntary euthanasia.”

Who can give the help?

Under the new laws about MAID, only doctors and nurse practitioners can give the drugs to the patient.

People who can help the doctors and nurse practitioners in the process include:

  • pharmacists;
  • health care providers who help both doctors and nurse practitioners; and
  • family members or other people that you ask to help.
Be Aware

In Alberta, Catholic hospitals are currently refusing to provide MAID. This means that patients in such hospitals will have to move before being able to access MAID.

How can this help be asked for?

For detailed information about how to ask for MAID, and what will happen if you do, see the Process tab of this Information Page.

More Information

For more information about MAID, see the following resources:

Web End-of-life care
Government of Canada
English

Web Soins en fin de vie
Government of Canada
French

PDF Medical Assistance in Dying
Centre for Public Legal Education Alberta
English

Web Medical Assistance in Dying: An Enormous Change in Canadian Social Policy
Centre for Public Legal Education Alberta
English

Web Nurse Practitioners Authorized to Provide Medical Assistance in Dying
College and Association of Registered Nurses of Alberta
English

Web Bill C-14: Are you eligible for medically-assisted death?
Alexander Holburn Beaudin + Lang LLP
English
This is a private source. Learn more here.


Web Provincial guidelines for medical assistance in dying
Estate Law Canada
English
This is a private source. Learn more here.

Web Difficult Questions Surrounding Mental Illness And Medical Assistance In Dying
WEL Professional Corporation
English
This is a private source. Learn more here.

For more information about Alberta guidelines, see the following resources.

Web Medical Assistance in Dying
Alberta Health Services
English

Web Medical Assistance in Dying
College of Physicians & Surgeons of Alberta
English

Planning your own funeral

Most of us do not spend much time thinking about plans for our own funeral. If we do consider it, we often only state our wishes for what will happen to our bodies when we die. For example: burial or cremation.

However, it is possible to plan your own funeral. You can even pay for it in advance. In Alberta, there are 2 ways to pay for your funeral before you die:

  1. You can give all the funds to the funeral home in advance.
  2. You can use an insurance contract.

For more information about planning your own funeral, see the following resources.

PDF Planning Your Own Funeral in Alberta
Centre for Public Legal Education Alberta
English

Web Prearranging
Alberta Funeral Services Regulatory Board
English



Web Funerals
Government of Canada
English

Web Funérailles
Government of Canada
French

Web Canadian Consumer Handbook: Funerals
Consumer Measures Committee
English

Web Guide du consommateur canadien : Funérailles
Consumer Measures Committee
French

Audio What you need to know about funeral pre-planning, but were afraid to ask.
Caregiving Matters
English
This resource is from outside Alberta. Learn more here.

PDF Guide juridique pour les personnes aînées du Nouveau-Brunswick
Association des juristes d'expression française du Nouveau-Brunswick
French
This resource is from outside Alberta. Learn more hereSee p. 4-7.
Tip

Although you can put all of your funeral wishes in your Will, there is a risk that your Will may not be found until after the funeral or memorial service has already taken place. Be sure to talk with your loved ones about your wishes too.

Aboriginal matters and on-reserve considerations

For Aboriginal people without Indian Status, all of the laws described above apply.

However, for some Status Indians, the federal Indian Act will also apply. The Indian Act rules and requirements might even trump the provincial rules. If the Indian Act applies to you, this will mean big differences for you in terms of planning for death and having your estate managed. Examples of these situations are described below.

For more information about Indian Status, see the following resource.

Does the Indian Act apply to you?

The minister of Indigenous and Northern Affairs Canada (INAC) has jurisdiction over the Wills and estates of deceased Status Indians if they:

  • ordinarily lived on-reserve at the time of their death; or
  • ordinarily lived on land that belongs to the government of Canada (also called “Crown lands”) at the time of their death.
Be Aware

This is true even if the Status Indian currently lives off-reserve in a care facility. As long as the person would ordinarily live on-reserve, the Indian Act rules still apply.

Rules under the Indian Act

Indian Act rules when writing a Will

When writing a Will, the Indian Act has rules that are different from Alberta’s general provincial law.

Under the Indian Act, a Will must:

  • be written;
  • be signed by the Testator;
  • dispose of assets; and
  • take effect upon death.

These requirements are simpler than under Alberta provincial law. For example: even when the Will is all typewritten, there is no need for witnesses.

Tip

When you write your Will, you may wish to make sure that it meets the requirements of both the Indian Act and Alberta provincial law (as described above). That way, your Will will remain valid if it is transferred to the province’s jurisdiction for some reason. A transfer can be requested by INAC or by your family for a variety of reasons.

The Personal Representative / Executor under the Indian Act

If the Indian Act rules apply to you, no one has the authority to be your Personal Representative until he or she is appointed by Indigenous and Northern Affairs Canada (INAC).

Whether or not the deceased had a Will, the minister will appoint a person (such as a relative) who will administer the estate. This person is called the “Executor.”

The minister’s authority overrides who you named as Personal Representative in your Will. INAC may use your Will as evidence of your wishes, but the Will does not determine who will be appointed to manage your affairs after you die. Your Will will not have any force or effect until approved by INAC. In other words, the minister must approve the Will before any money or property can be distributed to anyone named in the Will.

Be Aware

This is true even if the Testator currently lives off-reserve in a care facility. As long as the person would ordinarily live on-reserve, the Indian Act rules still apply.

The approval of the minister is applied for after the Testator has died. For more information, see the “Aboriginal matters and on-reserve considerations” section of the Dealing with a Death in the Family Information Page, and the following resources.



 

For more information about Aboriginal considerations when writing a Will, see the following resources.

PDF Writing Your Own Will: A Guide for First Nations People Living On Reserve
Aboriginal Financial Officers Association of British Columbia
English
This resource is from outside Alberta. Learn more here.

Web What is a Will and How do I Make One?
Government of Canada
English


Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
See p. 19-22.

PDF Your Rights on Reserve: A Legal Tool-kit for Aboriginal Women in BC
Atira Women's Resource Society
English
This resource is from outside Alberta. Learn more hereSee Chapter 8.

Web Wills and estates on reserve
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Bequests of on-reserve property

Many First Nations have their own ways of determining where families will live on-reserve. The Band may also follow their own customs and traditions for dealing with on-reserve property. To find out what your Band’s rules are about gifting on-reserve property in your Will, contact your Band office.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French
Be Aware

On the issue of leaving property to your spouse or common-law partner, the Family Homes on Reserves and Matrimonial Interests or Rights Act may also apply. See below for more information.

Rights of the surviving spouse or common-law partner on-reserve: The Family Homes on Reserves and Matrimonial Interests or Rights Act

The law about the use and division of on-reserve family property has recently changed. The Family Homes on Reserves and Matrimonial Interests or Rights Act (FHRMIRA) gives new on-reserve property rights to spouses and common-law partners.

If the FHRMIRA applies on your reserve, your spouse or common-law partner has rights upon your death, whether or not you left a Will. You cannot change these rights through your Will.

Does the FHRMIRA apply on your reserve?

The FHRMIRA states that:

  • A First Nation government can make its own rules about the division of family property on its own reserve.
  • If a First Nation chooses to make its own rules, those rules must be made public and it is those rules that will apply on that particular reserve (not the FHRMIRA).
  • If a First Nation chooses not to make such rules, the Family Homes on Reserves and Matrimonial Interests or Rights Act will apply on that particular reserve.

If you are a Status Indian living on-reserve, before you write your Will, you will want to find out whether or not the FHRMIRA rules apply to you. To do this, you will need to find out whether or not your Band has made its own rules about family property division.

A list of First Nations that have made their own rules about family property division can be found in the following resource.



 

To find out about the current state of property law on your reserve, contact the Band associated with that reserve.

Web First Nations in Alberta
Government of Canada
English

Web Premières nations de l'Alberta
Government of Canada
French
Be Aware

There are still many resources on the internet and in libraries that refer to the state of the law before the introduction of the Family Homes on Reserves and Matrimonial Interests or Rights Act in 2014. Always be certain that the information you find deals with the current law about on-reserve property.

FHRMIRA: The right to stay in the family home when a spouse or common-law partner dies

Under the FHRMIRA, when one spouse or common-law partner dies, the surviving spouse or common-law partner may remain in the family home for up to 180 days. This true even if he or she does not hold an interest in or right to the family home.

In addition to allowing the survivor to stay in the family home for at least 180 days, FHRMIRA allows for the survivor to stay longer than 180 days if they get an Exclusive Occupation Order (EOO).

However, before that can happen, judges to hear the applications must be appointed. This has not yet happened. As a result, in Alberta it is currently not possible to apply for Exclusive Occupation Orders under this law.

Be Aware

The surviving spouse or partner has these rights even if he or she is not a member of that particular First Nation or is not a Status Indian.

FHRMIRA: The potential right to inherit the estate

Under FHRMIRA, a surviving spouse or common-law partner can potentially inherit the estate of the deceased, or may be able apply to the Court for half of the value of the family property. The exact inheritance will depend on the facts of the case and the rules for the specific Band.

Be Aware

Ownership of real property (homes and land) is different on-reserve than it is off-reserve. Band members do not “own” their land. Instead, they may have a right to use the land in some way. This is called having an “interest” in the land. The exact “interest” that Band members have will depend on the Band.

No matter what the deceased said in his or her Will, the surviving spouse or partner has certain rights regarding the family home and other on-reserve property. These rights are different depending on the survivor’s status on the reserve:

  • If the survivor is a member of the First Nation where the property is located, he or she may be entitled to a share of the deceased’s interest in the home or land. This is true even if the Certificate of Possession was in the deceased’s name alone.
  • If the survivor is not a member of the First Nation where the property is located, there can be no transfer of real property (this includes land and homes). However, the survivor may be entitled to compensation. The amount of compensation will depend on a number of factors. You may want to get the advice of a lawyer.

FHRMIRA: More information

For more information about the death-related property rights of spouses and common-law partners under the FHRMIRA, see the following resources.

PDF Matrimonial Real Property Rights on Your Reserve
Centre of Excellence for Matrimonial Real Property
English



Web Frequently Asked Questions
Centre of Excellence for Matrimonial Real Property
English

PDF Understanding Estates Management on Reserve
Centre of Excellence for Matrimonial Real Property
English

Web Wills and estates on reserve
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Web Your home on reserve: Who can stay in the family home on reserve?
Legal Services Society
English
This resource is from outside Alberta. Learn more here.

Presentation The Family Homes on Reserves and Matrimonial Interests or Rights Act
Courthouse Libraries BC
English
This resource is from outside Alberta. Learn more here.

More information

For more information about how the estate of a Status Indian is administered, see the “Aboriginal matters and on-reserve considerations” section of the Dealing with a Death in the Family Information Page.

Blended family considerations

In Alberta, the law around planning for death is no different for blended families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, although the law is the same, the family issues around planning for death may be much more complicated. For example: you may wish to leave your home to your spouse. If you are remarried, your children from your first marriage may not be happy with this decision. If it was the house they grew up in, they may feel it should go to them. There are legal tools that can help address these kinds of situations. Consider consulting a lawyer for legal advice.

For more information about planning for death in blended family situations, see the following resources.


Web Getting Re-married Later in Life: Some Estate Planning Considerations
Self-Counsel Press
English
This is a private source. Learn more here.

Web Estate planning: Who gets the house?
Financial Post
English


Web Guardianship in blended families
Estate Law Canada
English
This is a private source. Learn more here.

Web A Cautionary Tale for Step-Parents and Step-Children
ABlawg
English
This resource can be a challenge to read. Learn more here.

Web Will Planning - no simple task... Part 5
All About Estates
English

Web Estate Planning Considerations for Blended Families
O'Sullivan Estate Lawyers
English
This resource is from a private source outside Alberta. Learn more here.

PDF Estate Planning for Blended Families
Wilson Vukelich LLP
English
This resource is from outside Alberta and can be a challenge to read. Learn more hereSee “Estate Planning Considerations.”

Web Estate Planning for Blended Families: Carefully Balancing Interests
Heritage Law
English
This resource is from a private source outside Alberta. Learn more hereSee “Solutions.”

Web What is Mine Might Not be Yours: Estate Planning for Blended Families
Altro Levy LLP
English
This resource is from a private source outside Alberta. Learn more here.

PDF Use of trusts in blended family estate planning
Estate Planning Council of Edmonton
English
This resource is from outside Alberta and can be a challenge to read. Learn more here.

Web LawNow: Where There's a Will, There's a Way
Centre for Public Legal Education Alberta
English
Start on p. 23.

Web What is a Prenuptial Agreement and Who Should Have One?
Financial Pipeline
English
This is a private source. Learn more here.

Video resources:

Video Second Marriages
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.

Video Second Marriages from a Lawyer's Perspective
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.

 

The following resources are not available online. The links below will give you a preview of the resources, and you can find the full text at libraries across Alberta. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Book Estate Planning for the Blended Family
L. Paul Hood Jr. and Emily Bouchard
English
This resource is from outside Alberta. Learn more here. Get the full book from a library: Alberta Law Libraries / The Alberta Library.

Book Blended Family Dynamics: Effectively Handling the Cocktail (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

Book Are Child and Spousal Support Obligations Binding upon the Payor’s Estate? (article included in "48th Annual Refresher: Wills & Estates")
Legal Education Society of Alberta
English
This resource can be a challenge to read. Learn more here. Get the full article from a library: Alberta Law Libraries / The Alberta Library.

For information about updating your planning documents after separation or divorce, see the following resources.

Web Should I execute a new will after separation or divorce in Alberta?
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Important to update your estate plan after divorce
Kirk Montoute LLP
English
This is a private source. Learn more here.

Web Changing your Estate Plan after separation
Kirk Montoute LLP
English
This is a private source. Learn more here.
LGBTQ considerations

In Alberta, the law around planning for death is no different for LGBTQ families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

Unfortunately, LGBTQ families sometimes still face social stigmas, homophobia, transphobia, discrimination, and misunderstanding. If the individual or couple is not “out” to extended family members, there can be additional misunderstanding and conflict about who should have the right to make decisions. As a result, it is especially important to have legal documents (such as a Will) that identify the nature of the relationship. These documents need to be clear and specific.

Polyamorous relationships

In Alberta, much of the law around planning for death is no different for polyamorous families than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, only 2 people can be legally married to each other, and only 2 people can be Adult Interdependent Partners (AIPs). As a result, any rights given to people with the status of “spouse” or “AIP” can only involve 2 of the partners. For example: only the legally married spouse can have dower rights under the Dower Act. Any additional person romantically involved with the 2 married spouses would not have any dower rights.

In addition, polyamorous families sometimes still face social stigmas and difficulties that other families may not. Extended family members may not know about or understand the polyamorous relationships. This can lead to conflict about who should have the right to make decisions. As a result, it is especially important to have legal documents (such as a Will) that identify the nature of the relationships. These documents need to be clear and specific.

Concerns for immigrants and other non-citizens

Regardless of your immigration status in Canada, the law around planning for death is the same. Your issues and options will be guided by the same laws and approaches described above.

However, if the property, the proposed Personal Representative, or a beneficiary is outside of Canada there may be additional challenges. For more information, see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

If one of the parties is involved in criminal proceedings

In Alberta, the law around planning for death is no different for families where one of the parties is involved in criminal proceedings than it is for any other families. Your issues and options will be guided by the same laws and approaches described above.

However, you may not wish appoint someone who is in prison as your Personal Representative, as it would be difficult for him or her to do that job.

Process

Learn more about how to plan ahead for death, including:

  • Getting a Capacity Assessment
  • Arranging organ and tissue donation
  • Arranging to donate your body to science
  • Writing a Will
  • Changing or revoking a Will
  • Transferring property into joint names
  • Asking for medical assistance in dying
  • Planning your own funeral

Please read “Who is this Information Page for?” just below to make sure you are on the right page.

LegalAve provides general legal information, not legal advice. Learn more here.

Last Reviewed: July 2016
Who is this Information Page for?

This Information Page contains information about legal issues to consider when planning for death. This includes planning about:

  • what will happen to your property when you die, and
  • what will happen with your body when you die.
Tip

If you are just starting out with this topic, it’s a good idea to begin on the Law tab of this Information Page. There you will find basic information about what the law says, what the words mean, and other issues that will help you understand better what to ask for and how to get it. Once you have the basics down, you will be in a better position to learn about the process you need to follow to resolve your legal issues.

In general, the law and process on this Information Page is for people who live in Alberta. This is because for Alberta law to apply, the people affected should live in Alberta and the property being dealt with should be in Alberta. If you want to plan for property that is in another province, territory, or country, please see the Ongoing Family Relationships & Out-of-Province Issues Information Page.

Tip

When you are planning for death, it is also a good time to plan for possible illness while you are still alive. You will need different documents to plan for illness. For more information, see the Planning for Illness Information Page.

You are currently on the Process tab of this Information Page, which has information about the processes you need to follow to plan for death. For information on what the law says about planning for death, click on the Law tab above. There is also important information in the Common Questions and Myths tabs above.

Getting capacity assessed

When someone writes a Will or other document related to planning for death, the law does not require that capacity be assessed before the person can sign the document.

When documents are completed with a lawyer

If you complete a Will with the help of a lawyer, the process includes a look at capacity.

Whenever a person goes to a lawyer’s office to sign a Will, the lawyer conducts a test to ensure that the person understands what he or she is signing at that moment. The lawyer also conducts a test to help ensure that the person is not being forced to sign the Will.

However, a lawyer is not a doctor. The lawyer can only determine capacity at that very moment.

For example:

  • If the person has dementia and was having a “good” day, the lawyer would have no way of knowing this. The lawyer would see only the capable person that exists at that moment.
  • If the lawyer feels that the person in question does not have capacity at that moment, the lawyer will not allow that person to sign the Will. Again, the lawyer can only assess that moment in time.

Lawyers do not sign any kind of medical documents indicating that the person has “lost” capacity. Also, if a lawyer refuses to let the person sign a document, that should not be taken as the final word about that person’s capacity in general.

Formal Capacity Assessments under the Adult Guardianship and Trusteeship Act

In Alberta, the Adult Guardianship and Trusteeship Act (AGTA) provides a formal method of determining whether or not a person has lost capacity. It is called the “Capacity Assessment Process” (CAP), and it sets very specific and consistent testing standards.

Sometimes people choose to use the CAP, even if they do not have to. This is because it provides a thorough medical assessment of a person’s decision-making abilities. This can be especially helpful if there is any dispute between loved ones about whether the adult in question has capacity.

The expert who conducts the tests is called the “Capacity Assessor.” Capacity Assessors must meet professional standards, have specific training, and receive continuing education.

The CAP focuses on the kinds of decisions that the adult needs to make and evaluates the level of assistance required. The Capacity Assessor will only look at the types of decisions where assessment is needed. For example, there may be no concerns about how the adult chooses his or her social activities, but there is concern about the adult’s ability to understand the financial consequences of writing a Will. In this situation, the Capacity Assessor would only assess the adult’s ability to understand what a Will is and what would be the consequences of signing that Will.

The CAP is meant to be used for adult guardianship and trusteeship under the AGTA (see the Caring for and Decision-Making for a Family Member Information Page). However, a person could use the CAP any time a decision about capacity is wanted.

For more information about the CAP, see the following resources.


PDF The Adult Guardianship and Trusteeship Act - Alberta
Centre for Public Legal Education Alberta
English


 

A list of Capacity Assessors and the forms you will need are in the following resources.

Web Find a capacity assessor | How it works
Government of Alberta
English

Web List of capacity assessors
Government of Alberta
English

Web Guardianship & Trusteeship: Forms
Government of Alberta
English
Arranging organ and tissue donation

For information about how to register on the Alberta Organ and Tissue Donation Registry, see the following resource.

Web Alberta Organ and Tissue Donation Registry
Government of Alberta
English

For information about how to include your organ and tissue donation wishes in your Personal Directive, see the Planning for Illness Information Page.

Remember

If you plan to donate your body to science, you cannot also donate internal organs. For more information, see the “Arranging to donate your body to science” section below.

Arranging to donate your body to science

Universities across Canada accept body donations for medical research and teaching medical students. Many universities require pre-registration with consent of the donor.

Remember

You may not be able to donate your body to science if you are also an organ donor.

For more information, see the following resources.

Web Body Donation Program: How to Donate
University of Calgary
English

PDF Anatomical Gifts Program: Donor Registration
University of Alberta
English
Finding a lawyer or other legal help

For information about how to find and work with a lawyer, see the Working with a Lawyer Information Page.

Some community legal organizations offer legal help and advice on estates, and they may refer you to a lawyer that can help at a reduced cost. For more information, see the Community Legal Resources & Legal Aid Information Page and the following resources.

Web Elder Law Program
Calgary Legal Guidance
English

Web Wills Roster
Edmonton Community Legal Centre
English

Web Welcome to Grande Prairie Legal Guidance
Grande Prairie Legal Guidance
English

Web Legal Advice
Central Alberta Community Legal Clinic
English
Creating a Will on your own

For general information about how to write your own Will, see the following resources.

PDF Making a Will
Centre for Public Legal Education Alberta
English

PDF Wills Checklist
Centre for Public Legal Education Alberta
English

Audio/Web Things to consider when making a will
Calgary Legal Guidance
English


PDF Your Will Planning Workbook
Manulife Financial
English
This is a private source. Learn more here.

Web Reaffirming the Importance of Clarity in Drafting a Will
ABlawg
English
This resource can be a challenge to read. Learn more here.

Web Who is entitled to see your Will?
Estate Law Canada
English
This is a private source. Learn more here.

Web Avoiding Conflict Over a Family Will
Huffington Post Canada
English


Web Medical Assistance in Dying: An Enormous Change in Canadian Social Policy
Centre for Public Legal Education Alberta
English
This is a private source. Learn more here.

Web If You're Going to Hide Your Assets, Leave a Map
Huffington Post Canada
English

Web Estate Planning: Hold on to the Original Will
Huffington Post Canada
English


Video Do-it-yourself Will Kits
Hull & Hull LLP (via YouTube)
English
This resource is from a private source outside Alberta. Learn more here.

The following resource is not available online. The link below will give you a preview of the book, and you can find the full text at libraries across Alberta. For more information about using the libraries listed below, see the Educating Yourself: Legal Research Information Page.

Be Aware

The law about Wills in Alberta has changed since this book was published. There is still good information in it, but be sure your Will meets the requirements of the Wills and Succession Act from 2012.

Book Write Your Legal Will in 3 Easy Steps
Tom Carter
English
Get the full book from a library: Alberta Law Libraries / The Alberta Library.

If you write your own Will and have witnesses, you may also wish to have your witnesses sign an affidavit swearing that they witnessed you sign your Will. These affidavits will be required if your Will ever needs to be probated. In Alberta, the affidavit included in the probate package is called the “NC8” form and is available for download from the following resource.

Web Revised Surrogate Form NC8
Legal Education Society of Alberta
English
When you click on the link, the form will automatically download to your computer as a Word document.
Changing or revoking your Will

Sometimes, a Testator may want to change part of his or her Will. Or, the Testator may want to write a completely new Will.

For example, the Testator may have sold or given away some of the property mentioned in the Will. Or the Testator may want to make changes in his or her Will because of births, deaths, and marriages in the family.

Changing your Will

As long as the Testator still has capacity, he or she can make changes to his or her Will.

Often, this will be done by writing a separate document that only changes a part of the Will. This is called a “codicil.” If you write a codicil, you must sign and witness your codicil in the same way as your Will. The opening words of the codicil usually refer to the Will that it is changing by date. A copy of the original Will may also be attached to the codicil.

In the codicil, you will then indicate which clauses of the Will you are revoking or changing (also called “amending”). If you are making an amendment, include the new wording that replaces the old clauses. The codicil should also say that, apart from these changes, you confirm the terms of your original Will.

Be Aware

You should not change your Will by marking or crossing out words, as such changes will not be considered by a court. Sometimes, such attempts at crossing out can result in part or all of the Will being invalid.

For more information about writing a codicil, see the following resources.

Web Alberta Wills: Frequently Asked Questions
J.E. Fletcher Professional Corporation
English
This is a private source. Learn more hereStart at “How are Alberta wills changed?”

Web How to Write a Codicil
wikiHow
English
This resource is from a private source outside Alberta. Learn more here.

Web Legal Considerations
CanadaWills.com
English
This is a private source. Learn more hereSee “Examples and Illustrations.”

Revoking your Will

As long as the Testator still has capacity, he or she can also revoke the Will and complete a new one. Writing a new Will is a good choice if you wish to make major changes, or if you have already made several codicils. To revoke a Will, the Testator usually says in the first clause of the new Will that he or she is revoking all previous Wills.

Transferring property into joint names

Joint tenancy can seem like an easy way to get help with managing financial affairs, but it has huge risks. We generally trust our loved ones, but sometimes we can be wrong to do so. Anyone might be tempted to take advantage of the situation: it is so easy to simply “borrow” a little money.

If you place a lot of your money and assets into joint names, your joint tenant will have a great deal of control over your financial situation. He or she can use the position to control you, treat you poorly, steal your money, and shut out other people that you might have wanted included.

Remember

Placing property in joint tenancy has serious consequences both during the life of the joint tenant and if one of the tenants dies. Before transferring your property into joint names, consider getting legal advice.

To transfer money held at a bank or other financial institution into joint names, you must contact that bank or financial institution: each one has its own specific forms.

To transfer land into joint names, you must use an Application for Transfer of Land. See the following resource.

PDF Application for Transfer of Land
Government of Alberta
English

For information and instructions about what to do with this application, contact the Land Titles Office.

Web Contact Land Titles
Government of Alberta
English
Dealing with digital assets

When planning for death, there are a few things you can do to plan for your digital assets. Some examples are listed below.

Keep a current list of passwords to your various digital assets for your Personal Representative, and let him or her know where to find that list. However, this must be done with care. Remember that passwords are like keys to your online services. If they are stolen you may be vulnerable to theft, identity theft or other forms of abuse.

Make sure that your Personal Representative knows about the issues around digital estates. If he or she doesn’t, you may want to consider appointing a different person (or people) to help manage your digital assets.

Back up sensitive and sentimental data onto additional storage, either online or on an external hard drive. This can allow the Personal Representative to access copies of important information (like an email account). Then he or she may not have to try to get that information from the company itself.

For more information about making such lists and other steps you can take when dealing with digital assets, see the following resources.

Presentation Understanding Digital Assets: Practical Approaches to Estate Planning and Administration
Alexander Holburn Beaudin + Lang LLP
English
This resource is from a private source outside Alberta. Learn more here.

Tip

Because there is very little law in this area, a Personal Representative may want to consider getting legal advice before attempting to access a deceased person’s digital assets.

Doctor-assisted dying

It is now legal for doctors and nurse practitioners to help people end their own lives, if they follow certain conditions and safeguards. This means that medical assistance in dying (MAID) is available in Canada.

How can this help be requested?

To ask for medical assistance in dying, talk to your family doctor. Some doctors may refuse to provide MAID. In Alberta, if they refuse, they have “an obligation” to refer patients to a doctor or nurse practitioner who will perform the service. This must be done in a timely manner.

You can also call Health Link by dialing 811, where you can get more information and links to the care you need.

Be Aware

In Alberta, Catholic hospitals are currently refusing to provide MAID. This means that patients in such hospitals will have to move before being able to access MAID.

Alberta Health Services has also developed “Medical Assistance in Dying Care Coordination Teams” to act as a single point of contact for patients, families, and health care providers. They can be reached via email at MAID.CareTeams@ahs.ca.

For more information, see the following resources.

PDF Medical Assistance in Dying Care Coordination Service
Alberta Health Services
English

To download the form to request MAID, click on the link called “Record of Request for Medical Assistance in Dying (Form)” in the bottom section (Patients and Families) of the following resource.

Web Medical Assistance in Dying
Alberta Health Services
English

What will the process be?

Before providing medical assistance in dying, the doctor or nurse practitioner must go through several steps. They are as follows.

Get a written request from the patient. The patient must make and sign a written request, or fill in and sign a form, indicating that they want MAID.

If the patient can’t write, another adult can sign the request on their behalf. However this can only happen if the patient gives clear direction that that is what he or she wants. Also, the adult who signs:

  • must be at least 18 years old;
  • must understand what it means to ask for MAID; and
  • cannot benefit from the death of the patient. For example: if the adult is a beneficiary in the Will of the patient, that adult would not be allowed to sign the request on behalf of the patient.

Make sure the request is witnessed. The request must be signed by 2 “independent” witnesses. An independent witness:

  • must be at least 18 years old;
  • must understand what it means to ask for MAID;
  • cannot benefit from the death of the patient. For example: if the person is a beneficiary in the Will of the patient, that person would not be allowed to witness the request for MAID;
  • cannot be an owner or operator of a health care facility where the patient lives, or where the patient is getting care; and
  • cannot be directly involved in providing the patient with health care or personal care.

Make sure the patient is eligible. The doctor or nurse practitioner must find that the patient meets all of the conditions described above.

Get a second opinion. A second doctor or nurse practitioner must also provide a written opinion confirming that the patient is eligible. Neither of the doctors or nurse practitioners who give their opinions can:

  • hold a position of authority over the other doctor or nurse practitioner; or
  • knowingly benefit from the death of the patient.

Wait at least 10 days. There must be at least 10 days between the date of the written request and the date when the MAID is given. An exception to this 10-day rule can be made if:

  • the patient’s death is fast approaching; or
  • the patient might soon lose his or her capacity to provide informed consent.

Ask one last time before giving the MAID. Patients may withdraw their requests for MAID at any time in the process. If they choose to continue, they will be given a final chance to withdraw their request just before the MAID is given to them.

Be Aware

Because health care is provided by provinces and territories, each province and territory can come up with their own guidelines about MAID. These guidelines would have to work together with the new rules in the Criminal Code.

More information

For more information about MAID, see the following resources.

Web End-of-life care
Government of Canada
English

Web Soins en fin de vie
Government of Canada
French

PDF Medical Assistance in Dying
Centre for Public Legal Education Alberta
English

Web Provincial guidelines for medical assistance in dying
Estate Law Canada
English
This is a private source. Learn more here.

For more information about Alberta guidelines, see the following resources.

Web Medical Assistance in Dying
Alberta Health Services
English

Web Medical Assistance in Dying
College of Physicians & Surgeons of Alberta
English

Planning your own funeral

For general information about how to plan your own funeral, see the Law tab of this Information Page and the following resources.

PDF Planning Your Own Funeral in Alberta
Centre for Public Legal Education Alberta
English

Web Prearranging
Alberta Funeral Services Regulatory Board
English

You can also contact funeral homes and memorial services companies. Many have websites that give information about using their company to plan your funeral. For a list of funeral homes in Alberta, see the following resource.

Web Funeral Provider Directory
Alberta Funeral Service Association
English

Provincial Court

Queen's Bench

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