Finding A Will In New Brunswick

If you are looking to find a will in New Brunswick, you can consult the Probate Court record indexes for the province's counties. These records include wills, petitions, letters of administration, inventories, and other documents. Most surviving early records have been transferred to the Provincial Archives and microfilmed copies are available at the county level. The Probate Court has the authority to grant, recall, or revoke Letters Probate, which establish the validity of a will and certify that it was properly registered. To be considered a legal will, a document must be in writing, signed by the testator, and signed by two witnesses who were present at the same time as the testator.

Holographic wills

A holographic will is a handwritten and testator-signed document and is an alternative to a will produced by a lawyer. Holographic wills are not accepted in all states and are subject to each state's laws. Holographic wills do not require notarisation or witnesses. However, to avoid fraud, most states require that a holographic will contains the maker's signature.

In the case of holographic wills, the court will have to determine whether the will was signed in the testator's signature and by the testator's hand. This can be done through the use of handwriting experts or people familiar with the decedent's handwriting. Problems may arise when the handwriting is vague or illegible.

The minimal requirements for most states are proof that the testator wrote the will, evidence that the testator had the mental capacity to write the will, and the will must contain the testator's wish to disburse personal property to beneficiaries.

In some jurisdictions, holographic wills are only accepted if created in emergency situations, such as when the testator is alone, trapped, and near death. Some jurisdictions that do not generally recognise unwitnessed holographic wills grant exceptions to members of the armed services who are involved in armed conflicts and sailors at sea. In these cases, the validity of the holographic will expires at a certain time after it is drafted.

In New Jersey, holographic wills can be probated and will ensure that the testator's assets are bequeathed according to their wishes. The crucial requirement is that the will is handwritten, signed, and dated by the testator, and that the signature and key provisions are clearly written by the same hand.

Letters Probate

The 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. The executor may need this proof, for example, to recover money owing to the testator or to transfer certain assets in accordance with the instructions in the will.

The person requesting the letters probate may apply to the office of the Clerk of the Probate Court. This may be done in the judicial district where the testator was residing when they died or in a district in which the testator owned property. For example, if the testator lived in Moncton but owned a cottage in Plaster Rock, the executor could apply to the court in Moncton or in Woodstock.

The fees payable to the Probate Court for the letters probate are set out in the Probate Court Act and its Regulations. The fees are based on the value of the estate. Generally, the fee schedule is as follows: a fee of $5.00 per $1,000 of the estate being administered. If a lawyer prepares and submits the application for letters probate, their fee is separate from the probate fee.

The Probate Court has the power to grant, recall, or revoke Letters Probate and to supervise the administration and distribution of estates. Although distinct from the Court of Queen's Bench, the Probate Court is presided over by a Court of Queen's Bench judge. Every judge of the Court of Queen's Bench has jurisdiction over probate matters.

Probate Court

The Probate Court of New Brunswick has the power to grant, recall, or revoke Letters Probate, and to supervise the administration and distribution of estates. Letters Probate are documents that provide official recognition of the authority of the executor over the testator's estate. In other words, they validate the will and certify that it was properly registered.

The Probate Court is presided over by a Court of Queen's Bench judge, and every judge of the Court of Queen's Bench has jurisdiction over probate matters. The Probate Court also possesses the same powers to enforce judgments and issue orders as the Court of Queen's Bench.

The procedure before the Probate Court is set out in Regulation 84-9 under the Probate Court Act. There are two types of expenditures to consider with respect to proceedings before the Probate Court: legal fees and taxes. Section 75.1 of the Probate Court Act provides for the payment of a tax on the grant of common probate or letters of administration. However, unusual or exceptional grants are exempt from this tax but are subject to a particular fee. The tax payable is based on the value of the estate and is collected by the Probate Office that processes the application.

To obtain Letters Probate, you may apply through the Clerk of the Probate Court in the Judicial District where the testator resided or where they owned property. The Probate Court has locations in various Judicial Districts across New Brunswick, including Fredericton, Saint John, Bathurst, Moncton, Miramichi, Campbellton, Woodstock, and Edmundston.

The Probate Court also handles cases where someone dies without a valid will, which is known as dying "intestate". In such cases, the Court will appoint an administrator to manage the estate and distribute the assets according to the Devolution of Estates Act.

Executor duties

When someone passes away, an executor is appointed to take care of their estate. This person is responsible for carrying out the wishes of the deceased as outlined in their will. Here are the duties of an executor in New Brunswick:

• Funeral, Burial, and Obituary Arrangements: The executor is responsible for ensuring that funeral, burial, and obituary arrangements are made and paid for. While it is best to follow the deceased's personal wishes, it is not legally required. The executor will also need to obtain the death certificate, usually from the funeral home or Service New Brunswick.
• Locate and Read the Will: The executor must find and carefully read the will to understand the deceased's wishes. If the will needs to be probated, the executor should contact legal counsel for assistance.
• Make a List of Assets, Debts, and Possessions: The executor must create a comprehensive list of all the deceased's assets, including personal possessions, land, property, bank accounts, investments, shares, insurance policies, and anything else of value. They must also make a list of any debts, including taxes, and cancel unnecessary accounts and subscriptions.
• Contact Beneficiaries: If there are beneficiaries who are unaware of the will, the executor should contact them, provide them with a copy, and keep them updated on any progress.
• Determine the Distribution of Assets: Once all assets and debts have been identified, the executor can dispense the assets according to the will. This includes transferring property, vehicles, and other items. The debts of the estate, including probate tax, wages owed, and liabilities, must be paid before any beneficiaries can receive their share.
• Executor's Fees: The executor may be entitled to a fee for their services, which is typically up to 5% of the estate's value. If the executor is a professional, such as a lawyer, they cannot charge their professional fees for handling the estate.
• Income Taxes: The executor is responsible for ensuring that the estate's income taxes are paid properly and on time. They can seek advice from a tax professional and obtain a clearance certificate from the Canada Revenue Agency to confirm that all tax obligations have been met.
• Dealing with Surprises or Problems: As an executor, one may discover unexpected information about the deceased or encounter upset relatives or individuals. In such cases, legal advice may be necessary, and the estate will cover reasonable legal fees. Executor's insurance is also available for larger estates.

It is important to note that being an executor can be a significant responsibility and workload. Executors can be held personally liable for any mistakes, so it is always recommended to seek legal advice when needed.

Witness requirements

• Number of Witnesses: In New Brunswick, two adult witnesses are required to sign a will. This means that two individuals, in addition to the testator (the person making the will), must be present to witness the testator signing the will.
• Presence at Signing: It is essential that the testator and the two witnesses are all present at the same time when the will is signed. The testator should sign the will first, followed by the witnesses. The witnesses are attesting to the fact that they saw the testator sign the will.
• No Beneficiaries as Witnesses: It is important to note that beneficiaries of the will or their spouses should not act as witnesses. If a beneficiary or their spouse does witness the will, the gift to that beneficiary may not be considered valid.
• Holograph Wills: There is an exception to the witness requirement for holograph wills. A holograph will is a will that is handwritten, dated, and signed by the testator. It does not require witnesses, as the testator's handwriting serves as self-authentication. However, holograph wills are not recommended unless in an emergency, as they may create problems for the estate if not properly executed.
• Witness Competency: It is important that the witnesses are competent and understand the implications of what they are signing. They must be of sound mind and not unduly influenced or coerced.
• Witness Age: There is no specific mention of a minimum age requirement for witnesses, but they are referred to as "adult witnesses." This typically indicates that they should be over the age of majority, which is 19 years old in New Brunswick.

Frequently asked questions