Wills & Estates Overview

A will is a legal document that let you say what you want to happen to your property after your death. This property is called your estate.  A will also lets you choose who will be in charge of managing and distributing your estate. This is called your executor.  The people who will receive your property when you die are called your beneficiaries.

A will does not come into effect until your death. Your beneficiaries are not entitled to your property until after you’ve died. Likewise, a will does not allow your executor to manage your property until after your death. If you want someone to manage your property while you are alive but unable to manage it yourself, you need to create a Power of Attorney.

Do not put your funeral instructions in your will. Often, the funeral happens before anyone reads your will, so your instructions could be missed. Instead, write your funeral instructions in a letter and keep it in a safe place. Tell your family and your executor what you want and where to find the letter.

If you do not leave funeral instructions, then your executor will plan the funeral and use the estate to pay for it.

Many people purchase pre-arranged funeral plans. This option allows you to arrange and purchase the funeral plan that you want while you are living. This may give you peace of mind and relieve stress on your family when you die. If you do this, tell your family and your executor about it.

The New Brunswick Wills Act determines who can make a will. There are 2 requirements:

  1. Your age
  2. Your testamentary capacity.


Age

Generally, in New Brunswick, you must be at least 19 years old to make a will.

If you are under 19 years old, you can only make a will if:

  • You are married,
  • You have been married in the past,
  • You are a member of the Canadian Forces on Active Service, or
  • You are a sailor who is at sea.

Testamentary Capacity

You must have testamentary capacity when you make your will. This is sometimes called “being of sound mind”.

To have testamentary capacity, you must be able to:

  • understand the nature and effect of a will,
  • remember the nature and extent of your property,
  • understand the extent of what you are giving under the will,
  • remember the people who you could be your beneficiaries, and
  • understand the nature of the claims that may be made by persons you are excluding from the will.

You must have testamentary capacity at the time when you make your will. If you lose testamentary capacity after you have made your will, your will is still valid.

You do not have to make a will. If you choose not to make a will, then your estate will be distributed according to the rules in the New Brunswick Devolution of Estates Act.

But there are some benefits to having a will.

Choosing who will receive your property

Making a will is the only way to decide who will receive your property and what they will get.. If you die without a will, the Devolution of Estates Act will divide your property among your closest relatives. If you want to give a specific item to a specific person, or if you want your property to go to someone who is not your closest relative, you should make a will.

Choosing your executor

When you make a will, you can choose your own executor. If you die without a will, somebody must apply to the court to become the administrator of your estate. The administrator divides and distributes the property in an estate that did not have a will. The administrator is usually a member of your family, or if you have no family, a close friend or even a creditor. They may not be the person you would have chosen.

To give you flexibility in carrying out your wishes

A will gives you flexibility. For example, you may use “trusts” to help manage the property that you leave your beneficiaries. Also, it lets you set out all the powers needed by the executor to carry out your wishes.

Choosing who will care for your children

In your will, you can choose who will take care of your children under the age of 19 if you die and there is no other parent or guardian available. When you make a will you may choose the guardian you want to care for your minor children in the event both you and the other parent dies at the same time. Your choice of guardian is subject to approval by the court, and does not automatically mean that person will be the guardian, but the court will consider the person you’ve named.

Before you write your will, ask the person you want to become your children’s guardian if they are willing to do it. They can refuse to accept the position even after you’ve died. You should name an alternate guardian in your will, in case the first person can’t or won’t do it. The person that you choose as guardian for your children does not have to be your executor.

If you die without a will, the court will choose a guardian for your children. The guardian will usually be a close relative, but it may not be the person you would have chosen.

Avoiding delays and costs

Usually, it is easier and faster to settle your estate if there was a will. When you name an executor, your family will not have to apply to the court to appoint an administrator, which takes time and money.