LIFE AND DEATH PLANNING, NOVA SCOTIA

revised April 2, 2009

  In Nova Scotia when you reach the age of nineteen you have reached the age of majority. Legally you are sue juris (not Chinese food!) the legal term meaning that you now have control over yourself and your actions and decisions. The legal control and legal responsibilities of your parents over you are terminated. You may now enter into a binding contract, vote, buy and consume alcoholic beverages, and marry without obtaining the consent of others. (You may have been able to drive a motor vehicle on public roads if you were licensed to do so at age sixteen, but your parents worried!)

  No one can predict the future. But this is a time to be pessimistic. Think about all that can go wrong and what you should prepare for. What happens if you are in a car accident, in a coma, or killed. Of course, the probability of any of those things happening is low (?) but the smart thing is to be prepared.

  When you see a lawyer he will probably suggest that you have a Will, an Enduring Power of Attorney, a Living Will (that has no legal effect, but records your wishes), and a Consent for Medical care under the Medical Consent Act.

These four documents are the basic documents you will need NOW and for the rest of your life. Sometimes some of them can be combined into one document.

All of these suggestions have one thing in common. They appoint someone to stand in your place if you are unable to do something or want to delegate something. In a will you appoint an executor to stand in your place. By a power of attorney you appoint an attorney to do, all or some, things in your name and in your place, a Living Will tells someone what you want and to speak on your behalf about your quality of life and life support, a Medical consent appoints someone to stand in your place to consent for medical treatment, and implement your living will, if you are unable to do so yourself.
A Trust appoints a Trustee or trustees but has a different twist since you may be one of the trustees, but even so the trustees are standing in your place. You can also be a beneficiary. So, you can wear three hats:
1. Set up the trust;
2. Be a trustee;
3. Be a beneficiary.
There is no mystique in any of this. But the planning opportunities (saving fees and taxes) are endless.

The index lets you see what some of the topics are. See places to go below.

YOU MUST have a Will.

Wills are discussed later, but YOU MUST have a Will. Even if the Will only appoints an Executor which means your property will be distributed under the Intestate Succession Act (sets forth who gets your property when you don't have a Will). The appointment of an Executor and providing that a bond is not required, eliminates the need of the Probate Court appointing an Administrator, who would be required to get and pay for a surety bond. These bonds are expensive and cost far more than a Will costs, and may need to be renewed for an annual premium each year until the administrator is discharged by the Probate Court, an additional cost.

Comments, about examples.

Do not use any of the examples. Use a lawyer. Do not tell him you want a Will because that is what you will get. Rather ask him what you should have. Ask him about using a trust, in a will, and whether that is a good idea. If he says he doesn't know anything about trusts get a different lawyer who does. I will be recommending using a trust in ALL wills because there is an opportunity to reduce or eliminate probate taxes and reduce income taxes. Tell him if you travel. Documents that may be used abroad, say India or Africa, should be completed by a Notary Public preferably with a ribbon, gold or red paper seal embossed by a seal. The Notary should print or stamp when his commission as a notary expires. In Nova Scotia all lawyers are Notaries and their commission usually expires at Her Majesty's Pleasure. That means expires when the lawyer dies or is disbarred. When you travel along with your Passport take your medical consent, your living will, your birth certificate, and if you are married your marriage certificate.
Why a marriage certificate? If your spouse dies while travelling you need something to show you have the right to decide, as next of kin, what is to be done.
What is an Enduring Power of Attorney? It is a power that continues to be valid if you become mentally incompetent, the standard Power becomes invalid if you become mentally incompetent.

PICKING YOUR LAWYER.
Your lawyer should be familiar with the law applicable to inter vivos (which means created while you are alive and includes alter ego and joint partner trusts which means created when you are 65 or older) and should be familiar with the law applicable to testamentary trusts which means created by your will or by a testamentary instrument. He should know about life insurance trusts, and RRSP and RRIF trusts.
Spousal trusts may be inter vivos or testamentary and if properly established provide for a tax postponed rollover to a spouse.
Your lawyer should also be familiar with the income taxation of trusts and the T3 trust income tax form. If you have shares in a private company your lawyer should be familiar with the law applicable to small business, reorganizations, shareholder agreements, family trusts, corporate income tax, and the T2 corporate income tax form.
There are many Lawyers who seem to take pride in not knowing anything about trusts. You have to ask.

When planing what you need and what questions to ask, one of the purposes of this site is to make you think of the second death, the death of one or more of your beneficiaries. For instance, if you leave everything to your spouse in your Will then your assets are added to the spouse's assets and on the death of the second spouse all of the remaining assets must be probated. By leaving everything, or something, to a trustee for the use of the spouse, with the spouse having the right to use all of the income and all of the capital merely by asking for it, any assets remaining in that trust may be transfered from the trust without probate. The spouse may demand transfer of all of the assets at any time, thus collapsing the trust. But why would they do that? You can even name the spouse as a trustee.

Your lawyer should be up to date on the law applicable to joint tenancy, which is not the best way to own property.

LIFE AND DEATH PLANNING, Nova Scotia

In the beginning.

This site is under construction.

These four documents are the basic documents you will need NOW and for the rest of your life. Sometimes some of them can be combined into one document.

YOU MUST have a Will.

Comments, about examples.

Who am I?

Let me know

PLACES TO GO