Wills & Estates

McRoberts Law Office LLP - Family Law Winnipeg, Manitoba

Why not ensure your possessions are divided as you wish, rather than relying on a law that can change?"

McRoberts Law Office LLP can help you with estate planning, administration and litigation. Keep in mind the following – before you die without leaving a will.

If you die without a will...

  1. Your possessions may go to the Government of Manitoba. If you die without a will, your possessions will automatically go to the next of kin; if your next of kin are not notified of your death, or have themselves passed away, your possessions may become unclaimed and go to the Government of Manitoba.
  2. The law may change. If you die without a will, your possessions will be distributed using the law at that time – the current law may be your ultimate wishes, but that law may change. Instead, why not ensure your possessions are divided as you wish, rather than relying on a law that can change?
  3. The wrong person might benefit. If you die without a will, and your next of kin is killed in a common disaster, another of your family members–one you did not intend to benefit–might receive your possessions. Relatives who may be in need might not be able to share your possessions ... your favourite charity might be left out ... and what about your pet?
  4. Animosity among family members. If you die without a will, a common reaction is animosity among your family members. Relatives might fight over choice prized possessions, such as jewellery and antiques; especially if you promised certain items to people during your lifetime.
  5. Who will manage your estate? If you die without a will, who will oversee the distribution of your possessions and the managing of your estate? Without a will, you cannot guarantee that your executor/executrix is someone that you trust.
  6. Costly for next of kin. If you die without a will, the person who takes care of your estate might have to post a bond and surety to allow them to manage your estate.
  7. Complicated for next of kin. If you die without a will, your loved ones may have to apply to court to manage certain aspects of your estate. Without a will, you cannot specify the powers of your Executor/Executrix, or direct that funds intended to benefit a minor child be paid or transferred to that child's guardian to allow for that child's advancement in life.
  8. Who will take care of your children? If you die without a will, who will take care of your children? Although the Court determines guardianship of a child, they will always take directions in a will into consideration.

Estate administration

What is probate?

Quite simply, a court uses probate to determine whether or not a will is valid or invalid. The court's jurisdiction encompasses not only whether the will is valid, but what the terms of the will mean. Once the court determines a will valid, it will issue a Grant of Probate to the executor/executrix. The executor/executrix will then be able to take care of the deceased's estate.

There are a number of documents the executor/executrix will have to file to request for probate; these include all original copies of the will plus affidavits of execution, a full inventory of the deceased's property, and a request for probate with an affidavit in support.

Once the Executor/Executrix receives the Grant of Probate, administration of the estate commences, whereby the Executor/Executrix needs to call in all assets and settle all debts of the estate. Typically, administration can be accomplished in a period of about one year. This period is generally referred to as the Executor/Executrix's year.

As an executor/executrix, you should also apply for Canadian Pension Plan benefits, if applicable. CPP benefits include a lump sum death benefit payable to the estate, a monthly pension to the surviving spouse, and monthly benefits for dependent children.

The estate's lawyer often requests a release from the beneficiaries at the time of distribution, which helps avoid the time and expense of passing the estate's accounts. In some situations it might be necessary or beneficial to apply to pass accounts. The passing of accounts includes filing a number of documents that must be served to all persons interested in the estate. Essentially, the executor/executrix must account fully for his/her administration and distribution of the estate assets.

What are the duties of an executor/executrix?

The executor/executrix gathers up all of the estate's assets, pays all of the deceased's debts, and divides what remains amongst the beneficiaries.

Can someone be the executor/executrix of my will and also be a beneficiary?

Yes, the executor/executrix of your will may also be a beneficiary.

Application for Administration of an Estate

When someone dies without a will—called intestacy—interested parties can apply to Court for letters of administration. When a person dies with a will, but does not appoint an executor/executrix (or the executor/executrix is unable or unwilling to act), you may apply to obtain letters of administration with will annexed.

To apply for letters of administration or letters of administration with will annexed, one must be (in order of priority) a spouse, child, parent, sibling, or niece or nephew of the deceased. The Manitoba courts will only grant letters of administration to residents of Manitoba.

Applications for administration call for specific Court filings. Just like with probate, no distribution of the estate can happen until all liabilities have been determined and discharged, including funeral and testamentary expenses.

A notice to creditors should be published, in accordance with the Trustee Act, and if necessary notices under the Homesteads Act and the Dependant's Relief Act should also be issued. The administrator should also apply for all available CPP benefits. The administrator will seek releases from beneficiaries, just like an executor/executrix, at the time of distribution to save time and money.

Remuneration of the Executor/Administrator (the Personal Representative)

As written in Section 90(1) of the Trustee Act, the executor/executrix or administrator is entitled to fair and reasonable payment for their care, pains and trouble, plus time spent on behalf of the estate.

The payment for the personal representative must be reasonable from the point of view from the beneficiaries, as well as the view from the personal representative. When deciding the remuneration, the Courts consider: how simple or complex the estate is, the period of time spent on the estate by the personal representative, if the representative commenced their duties with the benefit of the estate in mind, and whether or not the representative completed most of the work themselves or by a solicitor.

Court filing fees

Probate or administration filing fees are based on a percentage of the net value of the state. Currently, the Court charges a filing fee equal to 0.7 per cent of the estate's net assets.

Please contact us for further information with regard to probate or administration.

Living wills/health care directives

What is a health care directive?

A health care directive, also called a living will, sets out your wishes for which medical treatment(s) you do or do not want administered if you are unable to make those decisions yourself. You may also wish to appoint a health care proxy, someone who makes health care decisions for you when you are no longer able to do so.

Who can make a health care directive?

If you are 18 or over, and can currently provide or refuse consent to current medical treatment, you are generally able to make a health care directive. The document is only effective when you do not have the ability to make or communicate your own health care decisions.

Who can be a health care proxy?

Your health care proxy should be someone who is 18 years of age or over, and is mentally competent. They should also be someone that you trust and who you have informed of your health care philosophy or wishes. You may also want to appoint more than one proxy.

What if I change my mind?

You are able to change your health care directive at any time by creating a new one, or destroying it. You can also indicate your intention to revoke your directive in writing. If you have appointed your spouse as your proxy, that appointment will be revoked if the marriage is ended by divorce or annulment.

Powers of attorney

A power of attorney can take effect immediately, or when mental incapacity is certified as described in the document.

What is a power of attorney?

A power of attorney allows you to give someone else the authority to act in your place, subject to the type of power that is given.

There are two types of power of attorney. The first is general–it gives someone the power to do all the things that you can lawfully do. The second is a limited, or specific, power of attorney, which gives someone the authority to perform only specific acts on your behalf.

Who can give power of attorney?

Anyone who is 18 or over, and can appreciate the nature and extent of their property and affairs, can understand to whom they are giving the authority set out in the power of attorney, and can also appreciate the extent of that authority can give power of attorney.

Who can I appoint in my power of attorney?

Anyone who is of sound mind can act as a power of attorney. You should of course only choose someone who will act in your best interest for your property and affairs. You can also choose to have more than one person for your power of attorney.

Why should I have a power of attorney?

In the event that you lose mobility or mental capacity, a power of attorney gives you control over who will manage your property and affairs. It is also simpler and cheaper than alternatives, such as committee ship.

What if I change my mind about who I wish to appoint in my power of attorney?

In the case of a specific power of attorney, the completion of the specific task or the passing of the date specified in the power of attorney results in the cancellation of the power of attorney.

A specific or general power of attorney can be terminated by any one of the following:

  • Mental incapacity of the person granting the power of attorney, unless the document specifically states otherwise
  • Incapacity of the person acting as power of attorney
  • Death or bankruptcy of either parties
  • Revoking the power of attorney by giving notice to the person named as power of attorney of the revocation

Practising Lawyers: Cal Friesen, Kenneth Thomas Greenhalgh, H. Mark LaClare, Martha P. Musuka, Conor Williamson, G. Alex Cudney, Garry J. Sinnock, Harley Greenberg, Nikki C. Kagan, Andrea Rous, Nick Doyle

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The information provided herein is of a general nature. Please contact us at 204-944-7907 to speak with a lawyer to discuss the specifics of your situation.