What is a Will?
A Will is a written document that outlines how, when, and by who, your estate is to be distributed once you have passed. To be legally binding, a Will must follow the procedures as set out by the Wills Act of Nova Scotia.
What Happens If You Do Not Have a Will?
If you die without a Will, ("intestate") your assets and belongings will be distributed according to the Intestate Succession Act.
The Intestate Succession Act legislates that your spouse is entitled to either the first $50,000.00 of the estate or to the home. After that, your spouse and your children share in the remainder of your estate.
If you die without a spouse, or children, the Act dictates which relatives will become entitled to a share in your estate.
You can choose who will distribute your estate (your executor). Choosing an executor is of the most important decisions to make. This is the individual you are trusting to follow through with your wishes after you pass. You have the option of choosing one executor or joint executors, where two or more persons will act together.
It is also recommended that you choose someone to be an alternate executor, should the initial executor be unwilling or unable to act when the time comes. Waiting to see if there is a problem with your first chosen executor may render the timing of the decision too late.
If you do not have a Will, then someone (usually a member of your family, but possibly the Public Trustee) will be required to make an application to Probate Court for authority to administer your estate.
Division of Your Estate
Having a Will allows you to choose how and to who your estate is to be distributed. There are certain laws that place some restriction on what you are able to do with certain property (such as the Matrimonial Property Act) and you should discuss these possibilities thoroughly with a lawyer before finalizing your Will.
Do You Have Children?
A child cannot directly inherit while under the age of majority (19 years in Nova Scotia); however, a trust can be established so that the funds left to the child are invested and protected (by the executor) until the child reaches the appropriate age. You can also decide at what age the child is to inherit as long as it is over the age of majority.
A Will is able to designate a guardian for your children. If you die without a parent to the children alive, and a guardian was not chosen by you, a guardian may have to be chosen by a judge, after a financially and emotionally expensive court application.
It may be your intention to leave specific family members out of your Will. You should have a full discussion with a lawyer if that is your intention. Special consideration should be given to the Testator's Family Maintenance Act, which may enable a dependent to contest your Will, regardless of your wishes. Your lawyer will want to discuss the details of your wishes to ensure the proper steps are taken in the wording of your Will to fulfill your wishes.
Specific Gifts of Items
Through your Will, you are able to give specific gifts either in the form of identified items, property, or cash to specific people, or to a charity.
Determining the best way to draft your Will begins with a solid knowledge of what your current assets are and what your current liabilities are. Does your estate have enough assets to cover your liabilities? Do you have any life insurance policies to help pay off your debts? Are there assets that could pass outside of the estate, thus avoiding probate taxes or fees?
It is best to meet and discuss these issues with a lawyer and possibly other professionals to determine what steps can maximize your estate.
If You Already Have a Will
You should always be mindful of periodically reviewing your Will to determine if it still reflects your current circumstances, intentions, and estate plan.
Your Will should be reviewed at least every two years and any time you have a change in life circumstances. Certain circumstances, such as an uncontemplated marriage, will automatically revoke a Will. Other life-changing events, however, will not automatically revoke a Will, for example, a separation or divorce, although it can place certain restrictions on how your will is fulfilled.