Making a Will is the ultimate act of kindness towards those who survive you—your friends and relatives who will be grieving and suffering emotionally following your death. By having a Will, you make your personal wishes clear, thereby simplifying the role of those who are responsible for carrying out your final arrangements.
Without a Will, the Court appoints an administrator to settle your Estate. That appointed administrator may have to purchase a bond, which can be expensive. The costs of a court-appointed administrator far outweigh the costs of preparing and executing a Will.
In Manitoba, when you die without a valid Will, your property is disposed of under The Intestate Succession Act. The Act sets out an inflexible formula for distributing your assets. If you do not have any heirs, then under The Intestate Succession Act, the estate goes to the Crown. That means all property goes to the government. If you didn’t like paying taxes during your lifetime, why would you willingly (no pun intended) turn over your property to the government when you die?
A Will also allows you, the testator, to deal with important matters involving your dependent children (those under the age of 18). A properly drafted Will can make money available for your children’s education and maintenance. It also gives you the opportunity to state your wishes clearly concerning the guardianship of your children.
There are many good reasons to have a Will, but it really comes down to communicating your wishes to the people you are leaving behind, and the effort and expense of preparing your last Will and Testament is a lasting gift to your loved ones.
An individual’s estate can be very basic or very complex. Here are the answers to some of the most frequently asked questions regarding an individual’s estate.
Do I need a lawyer to administer an estate?
It is not necessary to hire a lawyer to assist in the administration of the estate. Certain probate documents must be declared before a Notary or Commissioner for Oaths. Some financial institutions require notarial copies of the Will or the Grant of Probate. Notary services can be obtained on a fee-for-service basis.
What are the responsibilities of an Executor?
The Executor’s (or Executrix’s) job is to locate the original signed Will and apply to the Court of King’s Bench to have the Will probated. The Court reviews the Request for Probate and accompanying documents. This includes a detailed inventory of assets owned by the deceased at the date of death. If the Court is satisfied that the Will is valid, the Court will issue a Grant of Probate. The Grant of Probate authorizes the Executor to settle the estate. The Executor is also responsible for verifying and paying the deceased’s outstanding debts and financial obligations. Debts must be paid before any bequests are given out. Collecting any debts owed to the deceased is also the responsibility of the Executor. Those payments become part of the remainder or residue of the estate. The Executor must ensure that final tax returns are filed for the deceased and the estate. When the assets have been identified and debts and fees have been paid, it is the Executor’s responsibility to pay out the estate in accordance with the deceased’s wishes as set out in the Will.
Who pays the bills of the deceased?
The Executor is responsible for paying the deceased’s outstanding debts and financial obligations. The Executor also has the authority to incur funeral expenses on behalf of the estate.
Is probate always necessary?
No, it is not always necessary to apply for probate. The decision to apply for probate of a Will depends on several factors, including the nature of the assets owned by the deceased and the size of the estate.
What if there is no Will?
A person who dies without a valid Will is considered to have died intestate. In that case, anyone with an interest in the estate may apply to the Court for permission to administer the deceased’s affairs. Without the guidance of a Will, the administrator of an estate has little discretion in the distribution of the assets. In Manitoba, The Intestate Succession Act governs the distribution of the estate of a person who dies intestate.
A power of attorney allows someone to act on your behalf if you become unable to do so due to injury or disease. If you do not have general enduring powers of attorney or have a limited form of powers of attorney provided by a financial institution, then a committeeship may be required to manage your affairs. This is expensive, so you’ll want to avoid it if you can!