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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 get 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 depending on the person’s family situation. Here are some of the rules that apply to someone who dies without a Will in New Brunswick:
- A spouse and no children: The spouse gets everything.
- A spouse and one child: The surviving spouse receives the deceased’s interest in any “marital property” under New Brunswick’s family law legislation. The remainder of the estate is divided between the surviving spouse and the child (50% each).
- A spouse and multiple children: The surviving spouse receives the deceased’s interest in any “marital property” under New Brunswick’s family law legislation. The remainder of the estate is divided between the surviving spouse (1/3) and the children (2/3).
- 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 shared 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 children of a sibling who is not alive).
You do not necessarily need a lawyer to make your Will in New Brunswick. In most cases, as long as a testator (person making the Will) is at least 19 and is “of sound mind”, they can make a legal Will.
Having said that, there are a number of situations where someone should get in touch with a lawyer to make their Will, including:
- If they want to exclude a spouse, child, or another dependant from their Will;
- If they are in a second marriage with children from a prior relationship;
- If there is a family member with a disability who is receiving government benefits;
- If they own assets, like real estate, outside of Canada; or
- If they want to engage in sophisticated tax planning.
Parents are usually the legal guardians of their own children. In most cases, if one of them passes away before the other, the surviving parent would usually continue to be the legal guardian of any minor children.
A parent (or other legal guardian of minor children) can name someone in their Will to take over that role if they are the last surviving guardian of the children. If the last surviving guardian passes away (or if both guardians die simultaneously), the person named in their Will would assume the responsibilities of legal guardianship.
Someone’s Will only takes effect once they are no longer alive. However, there are many cases where someone is alive but can no longer make decisions for themselves. This can happen as a result of an accident or due to general cognitive decline that can occur with ageing. This is where Powers of Attorney become essential.
A person makes powers of Attorney (POAs) while they are still mentally capable. They name the person or people authorized to make decisions on the person’s behalf if they become incapable. There are two types of POAs in New Brunswick:
- An Enduring Power of Attorney: This document authorizes someone to manage a person’s financial affairs (e.g. paying bills, managing investments, selling property) if they are alive but have lost the capacity to handle these things for themselves.
- A Power of Attorney for Personal Care: This document appoints someone to make decisions about another individual’s well-being (e.g. health care, diet, support services, etc.) if the individual becomes incapable. A POA for Personal Care is also commonly referred to as a Personal Directive or a Living Will.