Understanding a Legal Will
The facts about Legal Wills for Nova Scotians
When it comes to planning for the future, creating a legal will is one of the most important steps you can take. A will outlines how you want your assets and property to be distributed after you pass away, and ensures that your wishes are carried out. Often, having a Will allows your family to avoid the tie and expense of probate. In this article, we will discuss what you need to know about creating a legal will in Nova Scotia.
Legal Requirements for a Will in Nova Scotia
To create a valid will in Nova Scotia, there are certain legal requirements that must be met. The will must be in writing, signed by the testator (the person creating the will), and witnessed by two people who are not beneficiaries or spouses of beneficiaries. The witnesses must also be mentally competent adults. The testator must also have the mental capacity to make the will, and must do so voluntarily and without undue influence.
Different Types of Wills
There are different types of wills that can be created in Nova Scotia. A holographic will is a handwritten will that is not witnessed, but is only valid in certain circumstances. A formal will is the most common type of will, and is created with the assistance of a lawyer or notary public.
Common Mistakes to Avoid
There are several common mistakes that people make when creating a will. One is failing to update the will when circumstances change, such as when a new child is born or when property is sold. Another is failing to name an executor or choosing an executor who is not capable of fulfilling the duties. It is also important to ensure that the will is clear and unambiguous, and that the testator has not been unduly influenced in making the will.
It is important to note that getting married can have a significant impact on an existing will. In Nova Scotia, getting married automatically revokes any previous wills, unless the will specifically stipulates that it is made in contemplation of the upcoming marriage. This means that if someone gets married and does not update their will or create a new one that explicitly takes their new spouse into account, their previous will may be rendered invalid. In such cases, the Intestate Succession Act will come into play, which means that the surviving spouse and other family members will inherit the deceased person's assets according to a predetermined set of rules. To avoid this potential issue, it is important for individuals to review and update their wills after getting married, to ensure that their wishes are carried out in the event of their passing.
Assets, Beneficiaries, and Executors: What You Need to Know
In a legal will, the testator can include instructions for the distribution of their assets and property. They can also name beneficiaries and specify the share of the estate that each beneficiary will receive. If the testator has children who are minors, they can also name a guardian to care for the children. Finally, the testator must name an executor who will be responsible for carrying out the instructions in the will.
Choosing an Executor
Choosing an executor is a crucial decision in creating a will. The executor will be responsible for managing the testator's estate, paying off any debts or taxes, and distributing assets to beneficiaries. It is important to choose someone who is trustworthy, reliable, and capable of handling the responsibilities. It is also a good idea to choose an alternate executor in case the primary executor is unable or unwilling to fulfill the duties.
Updating or Revoking a Will
It is important to review and update a will regularly to ensure that it reflects any changes in the testator's circumstances or wishes. A will can be updated by creating a new will that automatically revokes the previous one or by creating a codicil, which is an amendment to the existing will. A will can also be revoked entirely by creating a new will or by physically destroying the original will.
As a codicil requires all the same signing formalities as a will, it is usually preferred to just redo the entire will rather than execute and attach a codicil.
Myths and Misconceptions
There are several myths and misconceptions about creating a will that can prevent people from taking this important step. One common myth is that a will is unnecessary if you do not have a lot of assets or property. In reality, a will is important for everyone, regardless of the size of their estate. Another myth is that a will is only for the wealthy. Again, this is not true, as a will is important for anyone who wants to ensure that their wishes are carried out after they pass away. Finally, many people do not understand the importance of naming an executor and choosing someone who is capable of fulfilling the responsibilities.
For example, imagine someone who has very little in terms of assets or property, but they have a specific item, such as a family heirloom, that they would like to pass down to a particular family member. Without a will, there is no guarantee that the item will end up with the intended recipient. It could be sold or disposed of, which can cause hurt feelings and family disputes.
Similarly, someone with young children should also consider creating a will, even if they have little in the way of assets. In a will, they can name a guardian for their children, ensuring that their wishes for their children's care are carried out in the event of their passing. Without a will, the court will make this decision, which may not align with the parents' wishes.
Even in situations where there are no assets or property to distribute, a will can be useful in avoiding potential family disputes or disagreements over how the deceased person would have wanted their affairs to be handled. A will can also provide clarity and guidance to family members during an emotionally challenging time.
Something as minor as transferring title to a vehicle or gaining access to a small bank account can go from being a simple task when a valid will is in place to a headache for all concerned when there is no will to grant anyone the proper authority to deal with the matter.
In Nova Scotia, if someone passes away without a will, their estate will be distributed according to the Intestate Succession Act. This means that their assets will be divided among their surviving family members, such as a spouse, children, parents, or siblings. However, this distribution may not align with the deceased person's wishes, causing conflict and tension among family members.
Creating a legal will is an important step in planning for the future and ensuring that your wishes are carried out after you pass away. By understanding the legal requirements for a will in Nova Scotia, what can be included in a will, and how to choose an executor, you can create a will that reflects your wishes and provides peace of mind. After dispelling some common myths and misconceptions about wills, hopefully the reader is more likely to take this important step in planning for the future.
Next see 'How to make a Legal Will'