Dying Without a Current Valid Will is a Family Problem

If you die without a valid Will, the legal term is dying “intestate”. This may include situations where:

• A Will can’t be found,
• The existing Will is invalid due to a subsequent marriage, provable lack of having the requisite mental capacity at the time of execution, or failure to follow all the statutory requirements for proper execution.

Sometimes there is a partial intestacy if the entire estate is not disposed of in the Will or part of the will is found to be invalid.

You should know that while marriage invalidates a Will, in New Brunswick, separation, divorce and subsequent common law relationships do not.

In addition to the grief of losing a loved one, the family group must then get together and agree on who will step in to administer the Estate including responsibility for :

• making funeral arrangements,
• managing legal matters including Court applications to be appointed an Administrator (may be required to post a bond) and possibly a Guardian of any minor children, as well as all subsequent Court oversight requirements including passing their accounts,
• securing, gathering in and dealing with assets,
• paying testamentary expenses and debts
• dealing with financial institutions and government entities,
• filing income tax returns and obtaining clearance certificates, and
• transferring real estate and distributing assets in accordance with the statutory provisions for intestate estates.

Having a valid and current Will will decrease the amount of time, delay and expense involved, lessen the emotional burden on your loved ones and decrease the potential for long-term conflict and dispute among them which they will always associate with their memories of you.

In New Brunswick, if you die intestate, subject to Marital Property and Family Services legislation, your Estate may be distributed in accordance with Section 22 of the Devolution of Estates Act, R.S.N.B. 1973, c. D-9 which sets out, in order of priority:

Spouse and child or children

1. If you leave a spouse and one child, your spouse receives any marital property and one-half of the residue. The other half goes to your child, held in trust by their guardian until they are 19.
2. If you leave a spouse and children (or grandchildren), your spouse receives any marital property and one-third of the residue. The children / grandchildren share the remaining two-thirds of your estate, again to be held in trust by their Guardian until they are 19 years of age.
3. If you leave a spouse but no issue, your spouse inherits everything.
4. If you die leaving no spouse or issue, your estate shall go to your family in the following descending order of priority:
   1. your father and mother, or the survivor of them.
   2. your brothers and sisters in equal shares, and if any brother or sister is dead, the children of the deceased brother or sister shall take the share their parent would have taken, if living.
   3. nephews and nieces (alive at your death) in equal shares without representation.
   4. next of kin of equal degree of consanguinity without representation.

There are additional technical aspects to these claims, so all applicable legislation should be verified in whole.

In any situation in which legal rights and responsibilities interact with people’s lives, there may be competing claims and rights, which requires further investigation and analysis, so legal advice should be sought in these situations.

Please note that this list doesn’t deal with specific issues of guardianship of your children, support obligations or marital property claims. Multiple marriages and blended families can complicate and delay the resolution of your Estate.

Making a Will

Here are the main things you need to think about to cover off most of the usual planning concerns. One method to determine if your plan is comprehensive is to test it by considering what would happen if the unthinkable happened:

1. next year;
2. in 5 years time; as well as
3. in 20+ years long range in the event you never get around to updating it.

Make a List:

• Executor and backup alternates - The trusted responsible person to gather up all your assets, take care of funeral arrangements, pay your debts and file your taxes;
• Name a guardian for minor children;
• Dispose of non-financial assets, including personal, household, automobile and sentimental assets;
• Make individual gifts of money, etc. to family, friends and charities; and
• Residue - Determine who gets what is left over, when and how (immediately or through trusts). This includes everything you own now as well as anything you acquire or may obtain ownership and rights to over your life, including lottery tickets, inherited rights to family property and other fortuitous assets.

Then consider the difficult question of what should happen if any or all of these people should predecease you, or if there is a common disaster?

In addition to these, your Will Plan should also coordinate, confirm or include:

• beneficiary designations to specific financial assets such as life insurance, RRSPs, RIFs, etc. keeping in mind income tax provisions,
• declarations of ownership to joint assets such as intergenerational bank accounts,
• digital assets rights,
• powers and directions to the Executor / Trustee in making discretionary decisions and dealing with third parties, as well as their responsibility to the beneficiaries,
• bonds and executor’s insurance and executor’s compensation; and
• last, but not least, funeral instructions if you did not pre-plan your funeral.

Lawyers have regulatory and professional duties including “know your client”, assessing mental capacity and ensuring your Will accomplishes everything you want it to (and to a certain extent, that your beneficiaries will be satisfied with).

To do that, when we meet alone I am going to ask you (usually uncomfortably right away) to provide detailed personal information about your life history and family relationships, your financial and other assets, who you trust most and your hopes for the future. I hold this information confidential in accordance with our code of professional conduct.

So be prepared to fill out questionnaires, a family tree including your parents, siblings, spouse and all children and to list all your assets and debts.

Consider this an opportunity to organize this information for your Executor. Ask me for Master Guide to My Affairs.

POWER OF ATTORNEY

When you review and prepare a Will, you should also discuss and prepare a Power of Attorney for Property and Personal Care.

Why every Adult needs a Power of Attorney or Two

Have you ever laid awake and thought about what would happen to you and your assets if you became ill or are in an accident and become unable to take care of yourself?

Some people assume that having a joint account or an additional signer on a bank account is all that is required to ensure you and your affairs will continue to be looked after, however, what if new arrangements need to be made with your insurance agent (because your house is vacant for period of time), investment advisor, health care provider or a government agency or service provider? What if an asset must be sold?

In the absence of a trusted person named in a Power of Attorney to act for you in your best interests, either for a limited time or for a longer period, in New Brunswick, the only alternative is make an application to the Court of Queen’s Bench of New Brunswick under the Infirm Persons Act, R.S.N.B. 1973, c. I-8,(http://laws.gnb.ca/en/BrowseTitle). Submitting this application with the supporting affidavits and information required takes both time and expense, and requires ongoing oversight by the Court, all of which you can avoid by making a Power of Attorney. In the absence of someone to help, the Office of the Public Trustee of New Brunswick may become involved to assist.

Currently, there are two types of Powers of Attorney arrangements which can be combined in one document or set up separately. Different people can be named in each.

Property and Financial Matters

A Power of Attorney for Property and Financial Matters pursuant to the Property Act (http://laws.gnb.ca/en/BrowseTitle) is effective immediately but can specifically be extended to continue to be effective during any period of mental incompetence (i.e. Enduring”). This document is often governed by a separate document restricting its use to periods of incapacity.

Personal Care

A second type is a Power of Attorney for Personal Care decisions relating to health care, shelter, nutrition, clothing, etc. pursuant to the Infirm Persons Act (http://laws.gnb.ca/en/BrowseTitle).

Some great information resources in New Brunswick to learn more about Power of Attorney are: Managing your Financial and Personal Affairs produced by the New Brunswick Public Legal Education and Information Service: http://www.legal-info-legale.nb.ca/en/managing_your_financial_and_personal_affairs and the Financial and Consumer Services Commission - Estate Planning at: http://fcnb.ca/lifestages/estate-planning.html.

Advanced Care Plans, Health Directives and Living Wills

In New Brunswick, these variously named imported concepts all fall under the Power of Attorney for Personal Care. They can name a person to make decisions on your behalf, and can be either very general (which may not be very useful in certain medico-legal situations), or very specific and detail what sort of treatments are preferred in particular health situations. As this is a developing area of law in the past few years with a number of legal cases making the news regularly, it can be quite difficult to draft legal wording that ensures your wishes are followed as it often depends on what is medically possible, available and applicable to your situation at a particular point in time which may be changing. The best advice is to discuss these issues with the person you trust and name as your Attorney for Personal Care, your loved ones and your medical team.

Some resources that are available to learn more in English and French and which are trying to bring clarity and detail into this area are:

1. http://www.advancecareplanning.ca and http://www.myspeakupplan.ca/; and
2. the free downloadable documents from the University of Toronto Joint Centre for BioEthics at  http://jcb.utoronto.ca/tools/livingwill.shtml