Wills & Estate Lawyers HALIFAX, BEDFORD AND TANTALLON

One of the goals of estate planning is to create a Will which acts as a plan to identify the guardian of your children and how assets and wealth are distributed. A Will also clarifies that debts must be paid before the gifts are released.

A Will must meet specific draing and signing requirements in order to be legal. Therefore, it should be done with a lawyer to ensure its validity and to ensure your wishes cannot be overturned.

The benefits of using an estate planning lawyer may include:

• reducing probate fees
• ensuring a valid W ill is drafted
• ensuring your children are emotionally and financially taken care of
  upon your death
• dividing your estate according to your wishes.

A Wills and Estate lawyer typically prepares three documents: a Will, a Power of Attorney and a Personal Directive (Living Will). These documents appoint someone to step into your position if you are unable or unwilling to respond.

A Will appoints a legal representative aer death. A Power of Attorney appoints an alternate financial decision maker to act for you while you are living. A Living Will/Personal Directive appoints someone to make your medical decisions if you cannot make them yourself.

A Wills and Estate lawyer must file extra court paperwork (i.e., an “application”) in probate court to appoint a person to handle the estate. These applications typically cost between $2,000 and $3,500.

An executor (personal representative) is an individual appointed to carry out the instructions in your Will. Their power takes effect immediately upon your death.
They are responsible for implementing the directions in your Will. They ensure the payment of debts and then transfer your assets to the beneficiaries.

After death, a Will needs to be submitted for probate, particularly when financial institutions like banks or investment companies are involved. These companies typically require legal recognition from a court that they can release funds to the executor/personal representative named in the Will.

If there is no Will, an administrator must be appointed through probate court to distribute your assets and pay your debts. Asking the court to appoint an administrator (executor) can cost in the range of an extra $2500.

Wills and Estate planning lawyers do more than just create Wills. Our lawyers can provide guidance on who is the most suitable person to be your medical proxy.

Our Wills and Estate lawyers also provide suggestions on who are the most appropriate family members or friends to appoint as a trustee of your children’s trust. We also make suggestions on who typically receives the “rest and residue” of your estate and how to minimize probate fees.

A Power of Attorney allows someone to conduct your financial affairs during your absence or incapacity. For example, if you are in the hospital, someone would pay your rent and take care of your other bills using a Power of Attorney.

The document is a type of trust, however, so it can never be used against your interest.

If you do not have a Power of Attorney and you were incapacitated, a lawyer would have to submit a guardianship application to the court.

The application typically costs $5000 and this is when there is no dispute within your family about who should be appointed guardian.

Avoiding a court application, the Power of Attorney simply states who you want to conduct your financial affairs.

A Personal Directive legally designates someone to make medical and personal care decisions on your behalf. Before the Personal Directives Act was created in Nova Scotia, this document used to be called a Living Will. The Personal Directive can only be used by your medical proxy (substitute decision-maker) when you are not mentally capable of making these decisions yourself.

You can also use a Personal Directive to provide detailed instructions about your medical care in a particular situation. For example, whether you wish to have your life prolonged and under what circumstances.

You can. We don’t recommend it. There are significant ambiguities that can be inadvertently created when drafting a Will which can invalidate the intent of the will.

The technical requirements for a validly signed Will are challenging to meet. For example, heirs are not allowed to be witnesses to a Will.

You also need a lawyer or commissioner of oaths to sign the affidavit of execution. An Affidavit of Execution documents that your witnesses actually witnessed your signature and initials.

The biggest risk in writing your own Will is that it won’t be considered a valid Will. An incomplete or incorrectly witnessed Will is the same as having no Will.

An invalid Will will not take care of your children or your assets according to your wishes. An invalid Will can lead to fighting among family members.

For more information on estate planning, the Canadian government has helpful resources.
Contact us for any specific questions you may have.