Frequently Asked Questions
What are Letters Probate?
Letters Probate are issued by the Probate Court of New Brunswick. These Letters provide official recognition of the authority of the executor over the testator’s estate. In other words, Letters Probate establish the validity of a will and certify that the will was properly registered in the Probate Court. Letters Probate apply to all property, including all real (land, homes, etc.) and personal property (moveable) owned by the deceased and located anywhere in the province.
How do I obtain Letters Probate?
You may apply for Letters Probate through the Clerk of the Probate Court. You may apply either in the Judicial District where the testator resided or where he or she owned property.
What is an Administrator?
The administrator of an intestacy (the estate of a person who has died without a valid will) performs duties similar to those of an executor (the title used when there is a valid will at the time of death), such as collecting the assets of the estate and distributing them to the persons entitled at law. It is the administrator’s duty to pay any debt of the estate, including taxes.
Why do I need a will?
Making a will enables you to decide who will inherit your real and personal property after your death. It also allows you to appoint a person as the guardian of your minor children.
Is it necessary to probate the will?
Although probate of a will is not mandatory, it is a procedure which is recommended particularly where the estate includes real property.
What happens when someone dies without a will?
On application, the Probate Court will appoint someone to act as the administrator of the deceased’s estate if that person died without a valid will. The Court will usually appoint a family member, or a close friend of the deceased.
A relative (or close friend) has died without a will. Can I be appointed the administrator of his/her estate?
You can apply for Letters of Administration at the office of the Clerk of the Probate Court. Under the Probate Court Act, where a person applying for Letters of Administration is not the next of kin of the deceased, any next of kin can challenge the application. However, it is up to that next of kin to prove that the administration should not be granted to the applicant.
How can I contest a will?
Contesting the validity of a will is complex. Therefore, seeking legal assistance is advised.
What is a living will?
A living will (also referred to as advance medical directions) provides detailed written instructions to doctors and family members on the kind of medical care you wish to receive in the event that you become incapacitated. Generally this is used when someone is suffering from a terminal illness. For example, in a living will, an individual might request that they not be sustained by artificial life support in certain circumstances.
New Brunswick does not have any legislation for living wills. Under the Infirm Persons Act (http://www.gnb.ca/0062/acts/acts/i-08.htm), there is authority for the creation of a Power of Attorney for personal care in which provisions for care similar to those that would be included in a living will can be incorporated.
What is a Power of Attorney?
A Power of Attorney is a document used when someone wants to delegate, to another, legal authority over his or her affairs. The person who signs a Power of Attorney is called the principal or donor. The principal chooses someone (called an agent, donee or attorney-in-fact) to have power of attorney, meaning the agent can make property, financial, personal care and other decisions for the principal.
Should you decide to give Power of Attorney to an agent, you can choose between giving broad or limited authority. The agent must be at least 19 years of age. A Power of Attorney is most frequently used when the principal is suffering from an illness or disability or when the principal cannot be present to sign legal documents.
Pamphlet on frequently asked questions regarding probate of a will http://www.legal-info-legale.nb.ca/pub-probate-will.asp