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When someone dies without a Will, it’s called dying “intestate”. When someone dies intestate, they don’t get a say in important decisions like how their assets will be distributed, who gets to be in charge of the process, and who will take care of any minor children. The rules about how assets are distributed differ depending on the situation. Here are some of the rules that apply to someone who dies without a Will in Manitoba:
- A spouse and no children: The spouse gets everything.
- A spouse and children (all with the same spouse): The spouse gets everything.
- A spouse and children (not all with the same spouse): The spouse gets $50,000 or one-half the estate (whichever is greater) plus one-half of everything else. Anything that does not go to a spouse/partner gets divided equally between the deceased’s children.
- Children but no surviving spouse: Everything is split equally between children. If a child is not alive, but they have kids of their own who are alive (grandchildren of the person who died intestate), the deceased child’s portion is divided equally among those kids.
- No living spouse or children: Everything goes to the deceased’s parents (or surviving parent, if there is only one). If the parents aren’t alive, then everything is split between the deceased’s siblings (or the descendants of a sibling who is not alive).
A lawyer is not necessary to make a legally-binding Last Will and Testament in Manitoba. In most cases, as long as the testator (person making the Will) is at least 18 and is “of sound mind”, they can make a legal Will.
Having said that, there are a few situations where someone may want to get in touch with a lawyer to make a Will, such as:
- If they want to exclude a spouse, child, or another dependant from their Will;
- If they want to distribute their assets unequally among their children;
- If they are in a second marriage/common-law relationship but have children from a prior relationship;
- If there is a family member who is receiving government disability benefits;
- If they own real estate outside the province that cannot be dealt with under a Manitoba Will; or
- If they want to engage in sophisticated tax planning.
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Generally, parents are the legal guardians of their children. If one of them passes away before the other, the surviving parent would usually continue to be the children’s legal guardian.
A parent (or other legal guardian of minor children) can name someone in their Will to take over that role in case they are the last surviving guardian of the children. If the last surviving guardian passes away (or if both guardians die at the same time), the person named in Will would assume the responsibilities of guardianship.
Someone’s Will only takes effect once they are no longer alive. However, there are many cases where someone is alive, but is no longer capable of making decisions for themselves. For example, this can happen as a result of an accident or due to general cognitive decline that can occur with ageing. This is where a Power of Attorney (POA) becomes important.
A POA is made by someone while they are still mentally capable. It allows them to name the person who would be authorized to manage their financial affairs (e.g. paying bills, managing investments, selling property) in the event that they are alive but have lost the capacity to manage these things for themselves.
In Manitoba, there are certain restrictions about what the person appointed under a POA can do when that person is the spouse/partner of the person who has lost capacity. For example, a spouse/partner cannot do things like sell, transfer, or mortgage the family home on their own. So when someone names their spouse/partner under a Manitoba POA, they would also typically name someone else – the “Homestead Attorney” – to deal with the family home on behalf of the incapable person.
In Manitoba, a POA is only valid if it has been witnessed properly. The witness must be a Manitoba lawyer or notary public, a local police officer or member of the RCMP, a qualified medical practitioner in Manitoba, a judge, or a person who is allowed to solemnize marriages in Manitoba.
A Health Care Directive appoints a “proxy” to make health care decisions for someone if they lose the capacity to make those decisions for themselves. In some provinces, this type of document is referred to as a Power of Attorney for Personal Care or a Personal Directive, and is sometimes also referred to as a Living Will.
The person who made the directive must sign it, but it does not need to be witnessed. When two people are appointed to act jointly, they need to agree on all decisions. However, if two proxies cannot agree on a decision, the person who is named first in the directive gets to make the final decision.