WILLS AND ESTATES

Wills

A will is a legal document that gives a person control over what will happen to the things they own (known as the estate) after death. A will also allows you to name who will be assigned to settle your affairs after your death.

The Newfoundland and Labrador Wills Act sets out requirements for creating a legally valid will, and other requirements have been developed through cases involving wills decided through the court system. The person making a will, also known as the testator or testatrix, must be at least 17 years of age and have legal capacity.

Capacity is a legal term meaning that a person has the mental ability at the time the will is made to understand the consequences of what they are doing in the will and the fact that they are making a legal document. Capacity has been interpreted by the courts to mean that the person making the will understands the type and amount of assets he or she is including in the will, and the fact that the will benefits some people and excludes other people from receiving assets.

Secondly, a will must be written. An audio or video recording of a person’s wishes is not a legally valid will in Newfoundland and Labrador.

If a person dies without a will, they are considered to have died intestate. In that case, their estate will be distributed according to the Newfoundland and Labrador Intestate Succession Act, which might be different from what they wanted had they made their own will.

Parenting time (formerly called access) is often referred to as visitation and is the right of a non-primary parent (or other important persons such as a grandparent) to visit and spend time with the child(ren) on a regular basis. Access also usually includes the right to ask questions about the child and be given information about health, welfare, and education.

Witnesses and Signatures

One of the many requirements that may impact the validity of a will is that it must be written and properly executed.

The Wills Act states the following in relation to witnesses and signatures required to create a valid will:

“A will is invalid unless it is made in writing, and it is either in the handwriting of the testator, and signed by him or her, or, where not so written and signed, is signed by the testator in the presence of at least 2 witnesses, who shall, in the presence of the testator, sign the will as witnesses, and where the will is made by a person who cannot write, it must first be read over to or by the testator in the presence of the witnesses.”

It is recommended that a lawyer be involved in directing this procedure.

Choosing an Executor

A testator must appoint an executor in their will. The job of an executor is to control and protect the estate’s assets, pay off any debts, and distribute property as instructed by the will. In almost all cases, the executor will also have to go through the process of applying for a grant of probate in Supreme Court. It is advisable that the executor consult with a lawyer to determine if the will is required to be probated.

The most important consideration for selecting an executor is choosing someone who is willing and able to take on the role. You may also wish to consider choosing an individual who lives close to you as your executor, as well as someone likely to outlive you. An executor has many duties and responsibilities and it can take years to completely distribute an estate, so it may be a good idea to select someone who would not need to travel frequently.

It is important for a testator to inform the person they choose to be the executor of this decision. An individual named as an executor has the right to refuse the role. Telling the person chosen to be executor prior to drafting the will allows the testator to select a different executor if the first person refuses the role. This could eliminate the need of going to court in the future. It is also important for the executor to be informed of the location of the original copy of the will so that they can easily locate it upon the testator’s death.

You may want to designate one or more alternate executors in your will. At the time of your death, the executor’s circumstances may have changed so that they can no longer serve as executor, or they may have changed their mind about accepting the role. Also, if your executor predeceases you, then there will be no need to amend your will if an alternate executor is named.

Categorizing Your Assets

A person often has many different types of assets, including bank accounts, investments, land, personal possessions, real estate, and others. It is important to understand your assets before deciding how to distribute your estate. There are two types of assets: non-estate and estate.

Non-Estate Assets

Non-estate assets are assets that are not distributed in your will. These types of assets typically pass automatically to specific individuals upon your death. As a result, you do not need to include them in your will.

A type of non-estate asset are assets that you own with another person(s) in joint tenancy. Assets you own in joint tenancy have a right of survivorship. This means that your share of ownership in the asset automatically passes to the surviving owner(s) upon your death. As an example, a family home that is considered to be a “matrimonial home” under the Family Law Act will often be owned in joint tenancy and in many cases pass automatically to a surviving married spouse upon death of the other spouse.

Another type of non-estate asset are assets that designate beneficiaries. An example of this includes insurance policies, where a beneficiary of that asset is selected. Assets such as this automatically pass to the designated beneficiary upon death.

It is strongly advised to check with a lawyer about what assets need to be included in your will. Keep in mind that in some cases, joint bank accounts may be determined by a court to be estate assets, depending on how that bank account was used and the intention of the primary account holder. In some cases, the account may not automatically pass over to the other person named on the account, but would have to be distributed to beneficiaries through a will or through the Intestate Succession Act.

Estate Assets

Estate assets are part of your estate and are to be distributed as part of your will. These types of assets can be gifted to any individual or organization of your choosing.

A type of estate asset includes assets that are in your own name. Another type of estate asset is an asset that you own as a tenant in common. Owning an asset as a tenant in common means that you own an individual and undivided share in the asset. Owning an asset in this manner means you have the right to transfer ownership of your share by deed, will, or other conveyance. The right of survivorship, where an asset would pass automatically to a joint tenant upon death, does not apply to assets owned as a tenant in common.

Distributing Your Assets

Before the executor can distribute your estate to your beneficiaries, they need to ensure that all of your outstanding debts, expenses, and income tax are paid in full. It is important to consider your debts, expenses, and income tax before you decide on the distribution of your estate and the person you choose as executor. Consulting with a financial advisor regarding this might be helpful.

When deciding how you would like the executor to distribute your assets, keep in mind that there are options.

You may want to gift an asset directly to a beneficiary. This involves the executor giving the asset to the beneficiary as soon as legally possible, which generally means after the will has been probated.

Another option is to put the asset in trust, which involves the executor (or trust company) holding the asset in trust until the moment that your will describes as the appropriate time to give the asset to the beneficiary. The distribution of an asset in the form of a trust is often used when the beneficiary is a minor or lacks mental capacity.

Lastly, there is an option to transfer your asset to a beneficiary in the form of a life estate. A life estate distributes an asset to a beneficiary for their use and enjoyment during their lifetime with a provision that upon their death, the asset goes to someone else. As an example, an individual who ultimately wants their child to own their home, but wants their sister to have a place to live until she dies may elect to transfer the asset to their sister in the form of a life estate.

Trusts

If you want to create a trust for someone, such as a minor, this will create new duties and responsibilities for the executor as they must set up and manage the trust until the minor reaches a certain age where they receive full control of the asset. These duties will continue as long as the trust exists. Typically, an executor’s duties will end once the estate has been distributed.

If you’re interested in creating a trust for any beneficiaries that are minors or mentally incompetent at the time of your death, you may want to consider appointing a separate person or a trust company to act as a trustee for the minor or mentally incompetent beneficiaries. You are strongly encouraged to consult with a lawyer and obtain legal advice if you are interested in setting up a trust.

Guardianship

Wills are typically known for outlining the distribution of an individual’s estate, but wills are also important for decisions such as guardianship. If you have minor children or other dependents, then a will can designate individuals as their guardians. It is important to note that any decisions about the custody of minor children must ultimately be in the best interests of those children, and could potentially be challenged and changed by a court.