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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 Newfoundland & Labrador:
- A spouse and no children: The spouse gets everything.
- A spouse and one child: One-half of the estate goes to the surviving spouse. The other half goes to the child.
- A spouse and multiple children: One-third of the estate goes to the surviving spouse. The remainder is split equally among the 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 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 Newfoundland. In most cases, as long as a testator (person making the Will) is at least 17 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 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 Newfoundland Will; 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 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 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 an Enduring Power of Attorney becomes important.
Someone makes an Enduring Power of Attorney 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.
The person appointed to make decisions is called the “attorney” (even though they don’t actually have to be a lawyer). They must be at least 19 years old and mentally competent.
An Advance Health Care Directive is a legal document that lets someone appoint an individual to make decisions about their health care, medical treatment, and end-of-life care if they are not capable of making those decisions for themselves. In other provinces, this document may be referred to as a Power of Attorney for Personal Care or a Personal Directive. It is also commonly known as a Living Will.
Since so much of our personal and professional information is now online, it’s important to let your loved ones know how you’d like your online profiles dealt with once you’re no longer here. Now, you can do that with Epilogue’s Social Media Will.
Epilogue’s Social Media Will guides you through a step-by-step process that lets you decide and document how you’d like your social media platforms and Google accounts dealt with.