Fairbanks Law Office


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Law and Death

Frequently Asked Questions Concerning the Law and Death

QUESTION: Who has the authority to make the funeral and burial arrangements?

ANSWER: If the deceased made a Will, his or her named Executor or Executrix in the Will, has the authority to make the funeral and burial arrangements.  In the event that the deceased died without a Will, his or her Administrator (a person appointed by the Probate Court) has the authority to make funeral and burial arrangements.  In the event that a person dies without a Will and the Court has not appointed an Administrator, the spouse of the deceased, and secondly the next of kin, that is, for instance, the children have the authority to make the funeral arrangements.

QUESTION: I have a Will leaving almost everything to my girlfriend and we plan to get married next month.  Can you foresee any problems?

ANSWER: Marriage will usually invalidate a Will.

QUESTION: My only daughter is 20 and very irresponsible.   She  is going out with a ne’er-do-well druggie and her future doesn’t look good.  I know that if I died tomorrow, in six months she would go through everything her father and I have built up over the years.  I love my daughter and want to help her.  What can I do to secure her future?  Can I stipulate  that if she marries her present boyfriend, then everything will go to the Church?

ANSWER: A lawyer can establish a trust fund to disburse the money over a period of time.  Such trust, upon application to the Court, can be voided or broken by the very person you wish to protect if the Court agrees.  It is against the law to stipulate that a person is disinherited if they marry a particular person.

QUESTION: My son is mentally challenged and I am the person who looks after him.  What happens when I die?

ANSWER: A properly drafted Will can appoint a relative or trusted friend to look after and help a person who cannot look after their own affairs.

QUESTION: Who looks after the children if my wife and I are killed in an accident?

ANSWER: A properly drafted Will should appoint a person or a couple to be the guardians of young children of deceased persons.  If a couple dies without a Will, the Court has the power to appoint someone to look after young children, who, incidently, may not be the person that the couple want to bring up their children.  The person appointed likely will not have wide desirable powers to deal with matters adequately when they arise, and they will also have to be bonded.  The premium on the bond will eat into the value of the estate, therefore making less money available for the care of the children.

QUESTION: Who can make a Will in the Province of Nova Scotia?

ANSWER: Generally speaking, any sane person over the age of 19 years can make a Will in the Province of Nova Scotia.

QUESTION: How can I make sure that the person who is handling my affairs after my death has all the information to do a proper and efficient job?

ANSWER: It is a good idea to provide your family with information stating the location of the Will, the address of your pension plan, where your Birth Certificate is located, how to get in touch with your Life Insurance agent, etc.

QUESTION: If I have a joint bank account with my son and I die, does he get to keep the money in it?

ANSWER: The money in a joint bank account can be withdrawn by your son, however, who gets to keep the money depends on who deposited the money and the rights of the other heirs.

QUESTION: I am an only child and my father died five years ago and this January my mother died.  All they had was a small house and five acres of land and, I guess, I am now the owner of it.  Mom owes the Housing Commission $2,000.00 from when she got the house fixed up a few years ago and the power bill was sent to me.  Surely I’m not responsible for her bills, I didn’t sign for the Housing Commission loan and I didn’t use the power.

ANSWER: All assets owned by a deceased person must answer to the debts of the Estate.  The house and land can be sold and the debts to the Housing Commission and the power company can be paid out of the proceeds of the sale.  It is not lawful for the heir to take the assets and leave the bills unpaid.

QUESTION: Canada Pension provides a death benefit.  Who has the right to make application to the government to have this paid to the Estate?

ANSWER: One of the duties of an Executor named in a Will is to collect or gather in all the things that the deceased person is entitled to.  If a deceased person has not made a Will naming an Executor, a Court appointed Administrator, spouse or next of kin may be able to gather in the assets of the deceased.

QUESTION: When Dad died I was named as his sole heir but when I took the Will to the bank where he had his bank account, they would not give me the money.  Why?  As anyone can see if they read the Will, I am his sole heir.

ANSWER: In order for a Will to be of use to the heirs, at the decease of the person who made it, it must be validated at the Probate Court.  After the Will has been validated, the bank will then release the funds to the heir because it will now know that the Will is truly the last Will of the deceased.

QUESTION: What procedure can be followed if the heirs will not pay the bills of the deceased out of the assets?

ANSWER: If the bills of the creditors are not paid, the creditors can file a claim against the Estate in the Probate Court or apply to the Court to administer the assets of the deceased.

QUESTION: Where is the Probate Office located that deals with deaths that occur in the County of Cumberland and the Towns of Amherst, Oxford and Parrsboro?

ANSWER: The Probate Office that deals with people who die within the geographical boundaries of Cumberland County is located at the Justice Centre at 16 Church Street, Amherst, Nova Scotia.

QUESTION: How can I obtain general information about what is legally required to be done when a family member dies?

ANSWER: The Public Legal Education Society of Nova Scotia at 1127 Barrington Street, Halifax, Nova Scotia, B3H 2P8, Telephone No. (902) 423-7154 publishes pamphlets like “How to Obtain Probate”, “Who Looks After your Will When you Die?” and “Duties of an Executor”.  These are free to anyone who asks for them and they are also available at the Probate Office at 16 Church Street, Amherst, Nova Scotia.

QUESTION: Do I need a lawyer to draft my Will?

ANSWER: It is not necessary to hire a lawyer to do your own Will.  Because legal skill is an important consideration in seeing to the formal requirements, it is recommended that a lawyer be hired to draft a Will.

QUESTION: How much will a lawyer charge to make up my Will?

ANSWER: The lawyer’s fees to draft a Will varies depending on how long your Will takes to draft.

QUESTION: What happens in those cases where there is no one to handle the affairs of a deceased person?

ANSWER: A government official called the Public Trustee has the right and duty to handle the affairs of any person who dies and has no one to look after their affairs.

QUESTION: Am I allowed to leave my organs for the use of living persons who need them?

ANSWER: Every person has the right to designate how they want their organs used at their death.  Because your Will is not processed until after your death, these wishes should be made known to your immediate family and you should sign a donor card outlining your wishes.  Keep in mind that if you live a long life or have a disease, your organs may be worn out or not suitable for transplantation, so it is important to have alternative plans in the event that your organs cannot be used.

QUESTION: What happens if the bills of an Estate exceed the assets?

ANSWER: Certain bills must be paid first and in full, like the medical and funeral expenses.  The remaining monies, if any, are paid in proportion to the amount of their claim, that is, the claims are pro-rated.