Wills and Estates

A Will is a written declaration that gives us the right to predetermine what will happen to our property after we die, and is effective only upon our death. Generally speaking, a Will is valid in Nova Scotia if the following characteristics are present:

• The Will is signed by the person making it, this person being of "sound mind".
• The Will is witnessed by two other individuals, who are not name in the Will
• The two witnesses are concurrently present and have witnessed the entire signing operation.
• The signatures are placed appropriately at the bottom of the Will.
• The testator must be at least 19 years old , unless he or she is married or in active service as a member of the armed forces of Canada or the British Commonwealth.

Commonly Used Terms
codicil
- an addition made to a last will and testament by a testator that is to be read as being part of the will. Codicils usually are only executed to effect minor changes, such as changing the executor.
estate
- the entire sum of property owned by an individual at his or her death. It includes real estate and all personal property.
intestate
- the condition of having died without leaving a valid will which disposes of everything you own.
testate:
- the condition of having died leaving a valid will disposing of everything you own.
partial intestate
- the condition of having died leaving a will that does not fully dispose of an estate.
testator
- on who makes or executes a valid will; testator applying to a man, testatrix applying to a woman.
executor
- the individual or trust company named in a will entrusted to carry out the intentions of the testator. It is possible for more than one executor to be named in a will and it is possible, and even advisable to name an alternative executor or executors in a will.

 Frequently Asked Questions:

Why Is It Important To Have A Will?
• A Will provides you with peace of mind that your estate will be distributed in accordance with your wishes. If you die without a will your estate will disposed of in accordance with the provisions of Intestate Succession Act, R.S.N.S. 1989, c. 236 and it is possible that your property will be passed to someone you did not intend to benefit.

• A Will permits you to appoint a guardian if you have any minor children. If you die intestate, it is possible that the guardian may be appointed by the court, and may be somebody that you would not have appointed yourself.

• If you have a will, you may appoint an executor who will distribute your estate in accordance to your wishes. If you die intestate, an administrator must be appointed and there will be a requirement for this individual to put up a bond. Having confidence in your Executor, you may stipulate in your Will that your Executor will not be required to post a Bond, thereby avoiding the expense and delays typically created when an Executor must post a Bond.

When Should I Revise My Will?
• Generally speaking, changes in your circumstances, or the circumstances of people mentioned in your Will may call for a change in your Will. For example: -
(a) If an executor dies or otherwise becomes unsuitable or unwilling to act as your executor;
(b) If a beneficiary dies;
(c) If a specific gift is no longer owned by you, or changed its nature;
(d) If you become divorced, remarry or adopt children;
(e) If you property increases or decreases significantly, you should consult your lawyer.

What Is My Role As Executor of An Estate?
The executor is personally responsible for any negligence in dealing with the assets of the estate. Therefore you must ensure that real property (land and buildings) are safeguarded and insured against all forms of peril.

As executor, you must ensure that chattels (furniture, vehicles, jewellery, et cetera) are insured against fire, theft, vandalism and third party injury in the case of a vehicle which is being used for any reason.

It will also be necessary for you to open a chequing account (with a statement and cancelled cheques to be sent to you each month) in the name of the Estate after the Estate has been opened and deposit sufficient funds to permit you to pay the Estate's lawful debts. Do not pay a bill if its validity or appropriateness is questionable. Refer the matter to a lawyer who will refer the issue to the appropriate official of the Registry of Probate or the Court of Probate when necessary.
• If an asset is not being used by a beneficiary but is being rented to a third party, then the expenses and income generated by the asset are to be counted in the administration of the estate.

As executor you must keep all records, even for trivial purchases, such as a notebook to keep your accounts in. You must provide the lawyer of the estate with all receipts/statements and cancelled cheques at the time the estate is ready to close.

If you intend to charge the estate for personal expenses, such as mileage, then keep travel receipts, and if you travel by car, keep a log of your mileage and gas receipts.

It is advisable to file an Income Tax Return for the Estate to the date of death. This should be done within three (3) months of the death if possible. Another return should be filed with all assets frozen, prior to the closing of the estate. You should get from Revenue Canada two (2) releases; one (1) to the date of death and the other, a final release of the estate. These Releases are often considered necessary before the Registrar of Probate will close the Estate. These Releases are called Clearance Certificates.

8. Within one (1) month of the Estate being opened, it is advisable to provide the lawyer of the estate with the following information:
(a) The assessed value of all lands and buildings and mobile homes in the names of the deceased.
(b) The numbers of all accounts at any financial institutions (name and branch address) and the exact amount in the account as of the date of death.
(c) A list of Serial Numbers and Identification of all Share Certificates, Bonds, et cetera.
(d) Descriptions (year, name and model) and the value of all vehicles, boats, livestock, et cetera.
(e) The value of any jewellery (with precise descriptions) or other valuables,
(i.e. - A Coin Collection).
(f) The value of household goods and effects or other items not specifically referred to in the above.

9. Notify Pension Offices of death.

10. List the contents of the deceased's safety deposit box.

• 11. Completely review all personal papers of the deceased in order to locate all assets and debts.

12. Prepare a detailed inventory of the deceased's assets and debts.

13. Ensure that all beneficiaries receive a copy of The Last Will and Testament of the deceased.

14. Notify the beneficiaries of the death, if necessary, and advise them of their entitlement.

15. Cancel any subscriptions or charge accounts. Return or destroy charge cards.

16. Reimburse yourself for all necessary and reasonable expenditures.

17. Apply for Canada Pension Plan benefits, if any.

18. Apply for the balance of any amounts payable under any Insurance Policies.

19. Pay funeral expenses, and all debts of the deceased and obtain necessary receipts. This includes filing the Estate's Income Tax Returns and paying any tax owing.

20. It has been our experience that a Tax Clearance Certificate takes approximately four (4) to five (5) months to obtain. Thus I would suggest that you begin to make arrangements to obtain this Certificate as soon as the Estate has been opened and an Inventory of Assets has been completed. I would suggest that in the case of large estates (estates over $150,000.00) that the services of an Accountant be retained. Explain to the Accountant or Bookkeeper that you will require an Income Tax Clearance Certificate prior to the closing of the Estate.

 
Types of Wills

• One Page Simple Standard Form Will
This service ensures proper execution and is slightly more expensive than a home will kit.
• Five Page Simple Standard Form Will
This type of will offers a more detailed comprehensive disposal of assets at a competitive cost.

Estate Planning

A detailed process involving creation of trusts, and consultation with chartered accountants to maximize tax savings. This service is billed on an hourly basis.

For further information, please contact a member of the Lorway MacEachern Wills and Estates Practice Group:

Duncan H. MacEachern
Nicholas E. Burke