YOUR LAST WILL AND TESTAMENT
Each year thousands of Nova Scotians either make a will or revise
their existing will. For most of us, the process of making the will
is not complicated or expensive, provided we have given proper consideration
to a variety of questions which normally arise. A lawyer can assist
by ensuring that you address the right issues, as well as by answering
your questions and seeing that your will reflects your intentions
and is prepared in accordance with the legally required format.
WHO SHOULD HAVE A WILL
Anyone who wishes to be assured that their Estate (everything you
own at your death including property, personal items & money)
will be dealt with in accordance with their wishes and in an efficient
manner, bills paid and assets and heirlooms left to family, friends,
charities, etc. should have a will.
Anyone who would, if they were to die today, leave dependent family
ought to have a will – TODAY! For many of us, the best insight
into why we should have a will is to consider what would happen
if we died today. What would happen to our family and our affairs
if we do not have a will? Who would look after things? Who would
get what? Who would care for our children? For how long? Under what
guidelines? With what objective? Would there be any dispute?
Most of us take some time to answer those questions and then only
after some consideration and discussion with our spouse, family
and lawyer. Accordingly, it would likely be a serious mistake to
assume our family would know what we would have wanted.
WHY SHOULD I HAVE A WILL?
Few things are more destructive and hurtful among family members
than the complications arising from the death of a loved one and
the disputes over what the departed “would have wanted.”
Additionally, the fact is your Estate is almost invariably less
expensive to deal with if you have a will than would be the case
if you do not. The delays and expense associated with Estates where
there is no will are frequently considerable and come at a time
when the family is least able to deal with unnecessary expense and
complications. Lastly and most importantly, it may be that if you
don’t have a will, your families, friends, etc. will not be
provided for as you would have intended had you given the matter
the serious attention which it deserves.
WHAT DOES THE LAWYER NEED?
Your lawyer will want to be generally familiar with your family
and financial situation, and will want to know:
• Do you own your own home?
• In whose name is it?
• Do you have life insurance?
• Who is the beneficiary?
• Do you have any significant liabilities?
• Do you have children?
• How old are they?
• What are their circumstances?
• Who is your Executor?
• Who should the Guardian for your children be?
• Do you want to make provision for grandchildren?
• Do you want to make provision for friends or other relatives?
• Do you want to make any special provision for any charity?
• Do you want to leave any specific items (family heirlooms,
personal items such as jewellery or coin collections) to your children
• Do you have any significant investment assets which may require
special consideration from an income or capital gains tax perspective?
Your lawyer will review these questions with you in general terms
so as to ensure your decisions take all the appropriate considerations
HOW DO I MAKE MY WILL?
You should make an appointment with your lawyer at which time your
lawyer will review relevant matters with you, advise you as required,
explain the special role of the Executor, Trustee and Guardian,
if applicable, and take your instructions when you are in a position
to provide them. After that part of the process is done, your lawyer
will prepare a draft will for your review, consideration and approval,
following which any necessary changes will be made. Your lawyer
will then arrange for the proper signing and witnessing of your
will in accordance with the required legal procedure.
WHERE DO I KEEP MY WILL?
Where you should keep your will is for you to decide. However, it
is important that your will be kept in a safe but accessible place.
For this reason, many people have their wills kept in a safety deposit
box, along with other relevant information to facilitate your Executor
in the completion of his or her work on your behalf.
WHAT HAPPENS TO MY ESTATE AFTER I DIE?
Your Executor will arrange to obtain your will and apply to the
Probate Court for Proof (confirmation) of your will and his / her
appointment as your Executor. Then your Executor is officially empowered
and authorized to take control of your assets, pay your liabilities
and deal with your Estate in accordance with your wishes as set
out in your will.
WHAT ABOUT TAXES?
Your Executor would ordinarily deal with these issues, with or without
the help of an accountant, depending upon the complexity of your
financial affairs. In general terms, income tax liability arising
from income earned or received by you before your death will require
the filing of a return. A return or returns may be required with
respect to any taxable income earned or received by your Estate
after your death. Additionally, any asset upon which an unrealized
and undeclared taxable capital gain has occurred will have to be
dealt with as required under the applicable income tax legislation.
Contrary to popular and mistaken opinion, there are no Death Duties
and/or Inheritance Taxes in Canada. As a general proposition, when
assets are transferred to your heirs or legatees, they are transferred
free of tax because any taxes associated with the assets will presumably
have been the responsibility of and paid by your Estate. There are
some exceptions, but they are too involved to deal with here.
WHAT IS AN EXECUTOR?
An Executor is the person proposed by you in your will to deal with
your wishes and the applicable law. The official appointment of
your Executor is made by the Probate Court upon presentation of
your will for proof and filing at the Probate Court and the Land
Registration Office for any district in which you own real property,
(land, buildings). Your Executor’s function is to take control
of your assets, sell them, if and as required, pay your bills, deal
with your tax liabilities and deal with the balance of your Estate
in accordance with your will and the applicable law.
Your Executor should be an individual who is competent and honest.
It is not necessary to appoint a professional or a Trust Company
as your Executor, although that may be advisable in some cases.
Your Executor is entitled to charge a fee based upon the value
of your Estate and the complexity of the matters involved.
WHAT IS A TRUSTEE?
A Trustee is a person whom you propose hold the residue of your
Estate (assets remaining after paying your debts, tax liabilities,
gifts and bequest and Estate expenses) in trust for a future purpose
as set out in your will; usually to proved financial support for
your children or other dependants until they are old enough to require
no financial supervision. The Trustee is often the same person as
the Executor, although it could be someone different.
WHAT IS A GUARDIAN?
A Guardian is the person whom you propose be the legal authorized
person to care for your children until they have reached the age
of 19 years which is the age of majority in Nova Scotia. The appointment
of a Guardian does not become official until it has been approved
by the Courts in the event of your death.
Basic legal fees and associated expenses including HST charged in connection with the review, advice, preparation and proper completion of your will range upward from $200.00 for an individual and $300.00 for a couple, depending upon the detail and complexity involved.
This is intended to provide general information only so that you
will be aware of some of the issues which you should consider when
dealing with this very important matter. For specific advice with
respect to your own Last will and Testament, you should seek advice
from your lawyer.