Are you someone who doesn’t have a will?
If so, then this information may be helpful for planning ahead. A will is a written legal document that gives instructions about what you wish to happen to the property you own after your death. There are many reasons to have a will, including peace of mind that your wishes will be carried out.
Consider creating a will as a way to:
- Avoid delays and legal costs: With a will, your family will likely not have to apply to the court to appoint an administrator to settle the estate – this will save money and time.
- Distribute your property as you see fit: Without a will, a court-appointed administrator will distribute your property according to the Devolution of Estates Act, which means it will be divided into shares among your closest relatives. This may not be your wishes.
- Give you the ability to choose your executor (the person or company responsible for distributing your property): Without a will, a court-appointed administrator will distribute your assets. This person will likely be a member of your family, a close friend or even a creditor. It may not be the person you would choose.
- Provide guardianship for your children if they are younger than 19: Without appointing someone as a guardian in your will, your wishes will not be known to the court. In this case, the court will likely appoint a close relative but they may not be the person you would choose.
- Give you flexibility in carrying out your wishes: For example, you may use a “trust” to manage the property you leave your beneficiaries. A will also sets out the powers for your executor to carry out your wishes.
Click here for more details about what happens when you die without a will, from the Public Legal Education and Information Services of New Brunswick. This non-profit organization provides the public with information about the law.
Who qualifies?
You must have the capacity to make your own decisions and be 19 years of age or older to make a will in New Brunswick. There are certain exceptions to this, including if you are or have ever been married, even if you are under 19 years old. Members of the Canadian Forces on active service and mariners or seamen while at sea can make a will if they are younger than 19.
Note: If you lose the capacity to make decisions after making your will, it is still valid.
To be mentally capable means that you are able to understand and appreciate financial and legal decisions and understand the consequences of making these decisions.
How do I get a will?
Step 1
You don’t need a lawyer to create your will. Will kits are available online or from other sources. However, if you use one of these forms, you should know that they may not include provisions required by law in New Brunswick for a valid will. It is a good idea to consult with a lawyer to ensure you prepare your will in the proper legal form. They can advise you about your legal duty to provide for dependents and explain how you can use trusts and other legal methods to manage benefits for your survivors.
Step 2
To prepare for a meeting with a lawyer, it’s helpful to think about your assets and how you want to distribute them. Click here to access a downloadable checklist from the Public Legal Education and Information Service of New Brunswick for creating your will. After the meeting, the lawyer will prepare the will and arrange for you to read it in detail. When you are satisfied that it contains everything you want, the lawyer will arrange for you to sign it and have people – usually staff at the lawyer’s office – witness it. The cost of a will can vary. Ask upfront how much the lawyer will charge for a will and how you should pay.
To avoid the possibility of creating problems for your estate, family or heirs, it’s wise to have your will in writing, signed and witnessed.
Step 3
Keep your will – the original and not a copy – in a safe, fireproof place, such as a safety deposit box. Your bank will require your executor to obtain the original before administering your estate at the time of your death. Wherever you choose to keep your will, it’s important to tell your executor and family where it’s stored and how to access it. You don’t need to register your will as there is no wills registry in New Brunswick.
Step 4
Ask your lawyer to contact you every three to five years to review your will to ensure it reflects your wishes. You should reach out to them whenever there is a significant change to your estate, family circumstances, or marital status.
What do I need?
If you consult a lawyer, you can likely save time and money by having the following information available for them:
- A detailed list of all your assets, including pensions, insurance policies and annuity contracts. It’s also important to list your debts, bank account information and other assets.
- Full names and addresses of the people you want to leave your assets to, including children’s ages and special needs. If you’re leaving assets to an organization or charity, it’s important to have its full legal name.
- Names and addresses of those people you want to appoint as your executor, trustee (who manages a trust for your beneficiaries and guardian for your children).
- Special instructions about keeping certain property such as a cottage in the family.
- Copies of any previous wills.
- Copies of any marriage or separation agreements.
- Information about personal items such as jewellery and heirlooms you want to leave for specific people.
- General instructions on how you want to divide your assets.
FAQ
Should I include my wishes for funeral arrangements in my will?
No. Consider putting your funeral instructions in a separate letter. Keep it in a safe place and tell your family and your executor your wishes and where to find the letter. It isn’t wise to add your funeral instructions to your will. When a person dies, the will is often read after the funeral. If you haven’t made funeral plans, your executor has the right to pay for the costs out of the estate. One option for you is to buy a pre-arranged funeral plan while you’re living, which may give you peace of mind.
Do I include my wishes for organ donation in my will?
No. This information is best outlined in a separate letter to tell your family about your wishes.
Can I cancel or change my will?
Yes. You can change your will or cancel it at any time before your death. You must be mentally capable to do this, and it is advised you contact a lawyer. If you try to change your will by writing on it, the changes may not be effective. Only you can make a change to your will. Appointing someone to make decisions on your behalf with an enduring power of attorney doesn’t give that person the ability to change your will. For more information on what it means to create an enduring power of attorney, click here. (link to Social Supports NB’s enduring power of attorney page)
If you have a will and find yourself in a situation where you feel pressured to make a change to the document, click here to read the publication “Protect Yourself from Abuse and Fraud: A guide for Seniors,” from the Public Legal Education and Information Service of New Brunswick.
What happens to any debt I may have when I die?
Your estate will first be used to pay off your funeral expenses, the cost of administering your estate and your debts you owe when you die. Your beneficiaries will get what is left over.
Who can I choose to act as my executor?
A person or a trust company can act as your executor. The person you choose must be someone you trust and can be a family member or a friend. The job does require some time and paperwork, so it’s a good idea to discuss it with the person you choose first. For more detailed information, click here to read a pamphlet from the Public Legal Education and Information Service of New Brunswick on “Choosing an Executor.”
Do I have to pay my executor?
An executor has the right to be paid, but family members will often agree to administer your estate without taking a fee. This is something you should discuss with your executor, and the terms set out in your will. Without these instructions clearly set out in your will, your executor can apply to Probate Court for a fee. For more information about probate, click here for a brochure from the Public Legal Education and Information Service of New Brunswick.
Other resources
Disclaimer
Please note that the information contained here is not meant as a complete statement about the law around wills and estate planning, as legislation changes from time to time. If you would like legal advice around the creation of a will for your specific life circumstances, it is advisable to contact a lawyer. To find a lawyer in your area, call the Law Society of New Brunswick at (506) 458-8540.
