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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 depend on the person’s family situation. Here are some of the rules that apply to someone who dies without a Will in Nova Scotia:
- A spouse and no children: The spouse gets everything.
- A spouse and one child (with the same spouse): The spouse gets the first $50,000 or the family home (whichever is worth more). The remainder is divided equally between the spouse and child.
- A spouse and multiple children (with the same spouse): The spouse gets the first $50,000 or the family home (whichever is worth more). One-third of the remainder also goes to the spouse, and the remaining two-thirds is split between 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 descendants of a sibling who is not alive.)
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A lawyer is not needed to make a legally binding Last Will and Testament in Nova Scotia. In most cases, as long as the 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 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 Nova Scotia Will; or
- If they want to engage in sophisticated tax planning.
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. 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 Nova Scotia, this document is sometimes referred to as an Enduring Power of Attorney, and the person appointed to make decisions is called the “attorney” (even though they don’t actually have to be a lawyer).
Before an attorney deals with real estate on behalf of an incapable person, their POA needs to be registered with the Nova Scotia Land Registry. To do this, the POA must have an accompanying document called an Affidavit of Execution.
A Personal Directive is a legal document that lets someone appoint an individual to make decisions about their personal and health care needs if they are not capable of making those decisions for themself. In some provinces, this type of document is referred to as a Power of Attorney for Personal Care or a Health Care Directive and is sometimes referred to as a Living Will.
In Nova Scotia, the person appointed to make these decisions is called a ‘delegate’. Someone cannot appoint more than one delegate unless the delegates are given different decision-making responsibilities.