Wills and Trusts
A Will is a legal document that determines how your estate (everything you own including property, personal effects and money) will be distributed after your death and also allows you to determine who will be in charge of handling your estate.
A Will allows you to:
- Appoint a Personal Representative/Executor to administer your estate
- Appoint a Guardian for your minor or disabled children
- Create Trusts for beneficiaries
- Distribute your Assets in accordance with your wishes
- Tax Plan
- Opt out of provincial legislation requiring bonding and court applications
- Save money and time
In Nova Scotia you must be 19 years age to make a Will unless you are under 19 and are married.
You must have mental capacity and be of “sound mind”. It is important therefore to make your will while you are able to do so.
Your Will must be in writing and be signed by two adult witnesses who are not beneficiaries. There is an exception for a holograph Will which must be wholly in your own handwriting. A holograph Will must be proven. It is easier to have a Will accepted by the Probate Court where it is properly executed and witnessed.
Testamentary and Discretionary Trusts:
When preparing your Will it is important to turn your mind to whom your beneficiaries will be. If you have children who are minors you may wish to set up a testamentary trust in your Will which will allow property to be held in trust until they reach the age of majority or until they reach an age at which you wish for them to inherit. In some cases you may want trust funds to be used for certain purposes while being held, for such things as education and medical expenses. You can also indicate if you wish to have the trust funds to be distributed in stages, (ie; 1/3 at age 21, 1/3 at age 25, 1/3 at age 30).
Discretionary Trusts (often referred to as Henson Trusts) can be set up to provide for disabled persons who are in receipt of public funding or social assistance so that their inheritance can be used for them when needed but is not subject to claw back from the government. It is important that such clauses are drafted carefully to give them the legal effect intended.