FAQ

Under the updated Federal Divorce Act (amended in 2021), the language has shifted away from 'custody' and 'access' and towards 'decision-making responsibility' and 'parenting time.' Decision-making responsibility refers to who makes major decisions about the child's health, education, and religion. Parenting time refers to the time each parent spends with the child. Courts focus on arrangements that are in the best interests of the child.

New Brunswick courts apply the 'best interests of the child' standard. Factors include: each parent's relationship with the child; the child's established routines; each parent's ability to support the child's relationship with the other parent; any history of family violence; and the child's own views (depending on age and maturity). Despite what you may see on social media posts, no automatic preference is given to either parent based on gender.

Shared parenting generally means each parent has the child at least 40% of the time. When parenting is shared, child support is not simply cut in half; courts look at both parents' incomes and the Federal Child Support Guidelines to calculate a fair amount. New Brunswick courts now require detailed financial disclosure even in shared parenting arrangements.

A child's views are considered, but they are not the only factor. There is no specific age at which a child's preference becomes binding in New Brunswick. Courts weigh the child's maturity and the reasons behind their preference. A 16-year-old's wishes will carry more weight than a 7-year-old's, but even older children's preferences can be overridden if the court finds another arrangement better serves their interests.

Relocation (also called 'mobility') is one of the most complex areas of family law. If you have a parenting order and wish to move with your child, even within New Brunswick, you generally must provide written notice to the other parent. If the other parent objects, you may need court approval. Courts weigh how the move affects the child's relationship with both parents, the reason for the move, and the child's overall best interests.

A parenting order issued by a court is legally enforceable. If your ex is denying you parenting time or not complying with the order, you can potentially file a motion for enforcement with the court. In some circumstances, non-compliance may be considered contempt of court. We recommend documenting every incident and seeking legal advice on your specific circumstances promptly.

Child support is governed by the Federal Child Support Guidelines. The basic amount is determined by the paying parent's gross annual income and the number of children. This is a table-based calculation, you can look up the applicable amount using the federal guidelines tables. In addition to basic support, parents may share 'Section 7 special expenses' bases on your incomes, such as childcare, medical expenses not covered by insurance, extracurricular activities, and post-secondary education costs.

Section 7 expenses (named after section 7 of the Federal Child Support Guidelines) are costs beyond the basic child support amount. They are typically shared proportional to each parent's income. Common Section 7 expenses include: daycare or childcare costs; medical and dental expenses not covered by insurance; prescription costs; orthodontics; tutoring; and extracurricular activities. Not all activities automatically qualify, they must be reasonable and necessary. The case law is not always black and white for some section 7 expense claims.

Yes. Either parent can apply to vary a child support order if there has been a material change in circumstances, such as a significant change in either parent's income, a change in the child's needs, or a change in parenting time arrangements. You can also vary an agreement by consent if both parents agree in writing.

Spousal support (sometimes called alimony) is financial support paid by one spouse to the other after separation. It is meant to address economic disadvantage arising from the relationship (and is not necessarily exclusive to people who are legally married).  For example: if one spouse left the workforce to raise children or supported the other's career. Entitlement, amount, and duration are based on factors including the length of the marriage, roles during the marriage, and each spouse's current financial situation. The federal Spousal Support Advisory Guidelines provide ranges, but they are not binding the way child support tables are.

In New Brunswick, child support obligations apply equally whether parents were married or in a common law relationship. Spousal support for common law couples is also possible. 

New Brunswick's Marital Property Act governs the division of property for married spouses. Generally, marital property (assets acquired during the marriage) is divided equally. This generally includes the family home, vehicles, bank accounts, and pensions. Property brought into the marriage (pre-marital property) or received as a gift or inheritance during the marriage may be something that may be excluded, but this can be complicated if it was used for family purposes.

The family home is typically considered marital property on marriage breakdown and is subject to equal division regardless of whose name is on the title. Options include: one spouse buying out the other's share; selling the home and splitting the proceeds; or, in some cases involving children, one spouse remaining in the home temporarily until the children finish school. The best approach depends on your financial situation and what the court considers fair.

This is an important distinction in New Brunswick. Unlike married spouses, common law partners do not have automatic property division rights under the Marital Property Act. However, there may be claims available through trust law (unjust enrichment) if one partner contributed significantly to property owned by the other. This is a complex area and legal advice is strongly recommended.

Pensions and RRSPs accumulated during a marriage are generally considered marital property and subject to division. Division of a pension often requires a court order and coordination with the pension plan administrator. This can be one of the most valuable assets in a marriage and should not be overlooked in negotiations.

New Brunswick does not have a single universal definition, it depends on the legal context. For income tax purposes, couples are generally considered common law after 12 months of cohabitation. For family law support purposes, the courts look at whether you were in a 'conjugal relationship of some permanence.' There is no fixed minimum period. Factors like financial interdependence, shared residence, and public recognition of the relationship all matter.

Not automatically. And in many ways, no. Common law partners in New Brunswick have the right to apply for spousal support and share child-related obligations equally to the issues that apply to married partners. However, common law partners do not have the same automatic property division rights as married spouses under the Marital Property Act or potential division of properties in the death of a partner. A cohabitation agreement drafted before or during the relationship is the best way to clarify each partner's rights and protect both parties in advance.

A cohabitation agreement (sometimes called a domestic contract) is a written legal agreement between common law partners that sets out how property and financial matters will be handled if the relationship ends. In New Brunswick, such agreements must be in writing and signed by both parties to be enforceable. 

If you are entering a common law relationship, particularly where one or both partners have significant assets, a cohabitation agreement can save enormous time, expense, and conflict later (and potentially a large amount in legal fees). 

You are not legally required to have a lawyer, but having one is strongly advisable, especially if children, significant assets, or contested issues are involved. Unrepresented parties often make costly mistakes in agreements or miss entitlements they did not know about, and working your way through the process is not a simple task.  A lawyer ensures your rights are protected and that any agreement is legally sound and enforceable.

A separation agreement is a written contract between separating spouses or partners that resolves issues such as parenting, support, and property division. It is legally binding when both parties sign voluntarily, with independent legal advice, and with full financial disclosure. Courts can set aside agreements that were signed under duress, without disclosure, or without each party having their own lawyer.

Mediation involves a neutral third party (the mediator) who helps separating couples reach agreements on parenting and financial issues. The mediator does not make decisions, they facilitate discussion. Mediation can be faster and less expensive than court. It works best for parties who can communicate reasonably well. If mediation is unsuccessful or not appropriate, the matter proceeds to court.

Legal costs vary widely depending on the complexity of the case, whether it is contested or resolved by agreement, and how much court time is required. Simple uncontested divorces cost significantly less than contested matters and may be able to be carried out on a flat rate fee. 

At Meredith Bateman Law, we provide transparent cost discussions at the outset of your file so you understand what to expect.  Unfortunately, there is often no way around the fact that going to court on contested matters is not quick, easy or in any way inexpensive.  

It helps to bring: any existing court orders or agreements; recent tax returns (yours and, if available, your spouse's); a list of assets and debts; any communication from your spouse or their lawyer; and any documentation relating to parenting arrangements. The more information you can share at the first meeting, the better we can assess your situation and options.

Yes. New Brunswick courts can issue emergency protection orders and restraining orders on an urgent basis when there is risk of family violence or harm. These matters are treated with priority. If you or your children are in immediate danger, contact police first. Our office can advise you on your legal options for protection orders as quickly as possible.

Family violence is a significant factor in parenting decisions under the federal Divorce Act. Courts are required to consider any history of family violence when determining parenting arrangements. A parent's exposure of a child to violence, even if not directed at the child, is taken seriously. Evidence of violence does not automatically bar a parent from having any parenting time, but it will influence the type of arrangement the court orders. 

You are not legally required to have a will, but not having one means the province decides what happens to your estate — not you. Without a will, your assets are distributed according to New Brunswick's Devolution of Estates Act, which may not reflect your wishes. A will also allows you to name your own executor, choose guardians for minor children, and make specific gifts to people or charities you care about.

Note:  Marriage in New Brunswick automatically revokes a previous will under the current legislation.  That legislation is expected to change, possibly in the Fall of 2026 so that marriage does NOT then automatically revoke an existing Will. Until then, if you marry or remarry, your existing will needs to be considered and updated or replaced.

Dying without a will is called dying 'intestate.' Your estate is distributed according to the Devolution of Estates Act. Generally, your spouse receives the marital property plus one-third of the remainder, with children dividing the remaining two-thirds equally. If you have no spouse or children, the estate passes to parents, then siblings, then more distant relatives. Unmarried partners (common law spouses), close friends, and charities receive nothing unless named in a will. The Probate Court will also appoint an administrator, who may not be the person you would have chosen, to manage your estate.

Under the New Brunswick Wills Act, you must be at least 19 years old (again this is slated to potentially change somewhat in 2026) and have 'testamentary capacity', meaning you understand what you own, who your natural heirs are, what a will does, and that you are making it freely. If mental capacity is later questioned, it is assessed at the time the will was signed. A will made while you were of sound mind remains valid even if you later develop dementia.

A handwritten (holograph) will entirely in your own handwriting and signed by you does not require witnesses to be valid in New Brunswick. However, homemade wills, hologragh wills and online kits are a frequent source of problems: ambiguous wording, improper signing, and omitted beneficiaries and gaps in the distribution of your estate can all lead to expensive disputes. Every province has its own wills legislation. A template valid in Ontario may not meet New Brunswick's requirements. 

The cost of a lawyer-prepared will is modest compared to sorting out a poorly drafted one later.

A comprehensive will typically covers: who receives your assets and in what shares; who is named executor; guardianship of minor children; specific gifts of property or sentimental items; funeral and burial wishes; and substitute beneficiaries in case someone predeceases you. If you have a blended family, business interests, or dependents with special needs, additional provisions are often needed.

Your executor manages your estate after you die; locating assets, paying debts, filing tax returns, applying for probate if needed, and distributing what remains. Choose someone organized, trustworthy, and ideally nearby. It can be a family member, close friend, or professional. You can name co-executors if you want two people to share the role. Always ask the person before naming them, as the role is voluntary and can be time-consuming and complex.

Probate is the court process by which a will is officially recognized as valid and the executor's authority confirmed. In New Brunswick, the Probate Court issues 'Letters Probate' which banks, land registry offices, and other institutions require before transferring assets. Not every estate needs probate. Jointly-owned assets with right of survivorship typically pass outside of it. New Brunswick charges a probate tax based on the value of the estate, which varies by estate size, but it is not as bad as many people believe and not what you see on American TV!

Yes. Wills can be contested on grounds including: lack of testamentary capacity; undue influence (someone pressuring changes to the will); fraud or forgery; improper execution and other potential grounds. Challenges are expensive and emotionally damaging for families. A will prepared by a lawyer, with proper documentation of the signing process, is much harder to successfully challenge than a homemade one.

Key triggers for updating your will include: marriage (which currently automatically revokes an existing NB will); separation or divorce; birth of children or grandchildren; death of a beneficiary or executor; legal name changes of beneficiaries or executors, major changes in your assets; and moving to or from another province. As a general rule, reviewing your will every 3 to 5 years, regardless, is good practice.

A Power of Attorney (POA) is a legal document in which you (the 'grantor') authorize another person (your 'attorney') to act on your behalf. In New Brunswick, POAs are governed by the Enduring Powers of Attorney Act, which came into effect in July 2020. Your attorney can be given broad or limited authority over your financial affairs and/or your personal care.

A financial (or 'enduring') Power of Attorney authorizes your attorney to manage your financial and legal affairs — banking, paying bills, managing investments, selling property, filing taxes. A Power of Attorney for Personal Care authorizes your attorney to make decisions about your health, medical treatment, living arrangements, and daily care if you cannot make those decisions yourself. These are two separate assigned roles and you may name different people for each role.

An enduring Power of Attorney remains in effect even if you lose mental capacity. This is the critical distinction from a general POA, which automatically ends if you become incapacitated. Since most people create a POA precisely to plan for the possibility of incapacity; through illness, accident, or dementia, an enduring POA is what most people need. Under New Brunswick's Enduring Powers of Attorney Act, all financial POAs are now enduring by default, unless you specify otherwise.

Choose someone you trust completely.  Your chosen and appointed attorney will have significant legal authority over your affairs. They should be organized, responsible, and available when needed. You can name a spouse, adult child, sibling, or close friend. Your attorney must be at least 19 years of age. You can also name a substitute attorney in case your first choice is unable or unwilling to act. There are other restrictions that you will need to discuss with your attorney on who may be further limited in acting as your financial power of attorney. 

Yes. You can name co-attorneys who must act together (jointly), or separately (jointly and severally), meaning either one can act alone. You can also name different attorneys for financial matters and personal care. Think carefully about whether co-attorneys will agree and cooperate, requiring unanimous decisions can cause delays in urgent situations.

A Power of Attorney for Personal Care allows your attorney to make decisions about your medical treatment, where you live, and your daily personal care if you lose capacity.

If you lose mental capacity without an enduring POA in place, your family may need to apply to the court for a guardianship or trusteeship order to manage your affairs. This process is significantly more expensive, time-consuming, and stressful than simply having a POA prepared in advance. In urgent situations, it can leave your finances unmanaged and medical care decisions unresolved while the court process unfolds.

Yes, as long as you still have mental capacity, you can revoke a POA at any time by signing a written revocation and notifying your attorney and any institutions relying on it. Once you lose capacity, you can no longer revoke a POA. This is why it is essential to choose your attorney carefully and review your POA whenever your circumstances or relationships change.

Yes, they serve entirely different purposes and timelines. A will deals with what happens after you die. A Power of Attorney deals with what happens while you are alive but unable to manage your own affairs. The authority in a POA dies when you do. A will does not help if you are incapacitated but still living. Together, a will and an enduring POA (financial and personal care) form the essential core of any estate plan. Both should be prepared by a New Brunswick lawyer to ensure they are valid and work together properly.

Yes, a real estate lawyer is required for any property purchase in New Brunswick. Your lawyer reviews and explains the purchase agreement, conducts a title search to confirm the seller legally owns the property and that it is free of liens or encumbrances, prepares and registers the mortgage documents with your lender, pays the Land Transfer Tax on your behalf, and ensures the title is properly transferred into your name on closing day. Attempting to close a real estate transaction without legal representation in New Brunswick is not possible. The land registry and lenders both require a lawyer.

Your lawyer's role begins after your purchase agreement is signed. They review the agreement to confirm all conditions have been satisfied, conduct a title search to verify clean ownership, work with your mortgage lender to prepare and register the mortgage and obtain your funds in order to buy the property, arrange title insurance if required, calculate closing adjustments (property taxes, oil or propane in the tank, condo fees), prepare the final statement of funds needed to close, receive and hold your closing funds in trust, register the transfer of title at Service New Brunswick, and ensure everything transfers over to you at closing. 

A title search is a review of public land registry records to confirm that the seller has clear legal ownership of the property and that there are no outstanding liens, encumbrances, easements, or other claims against it. Problems discovered in a title search, such as an undischarged mortgage from a previous owner, a contractor's lien, or a boundary dispute, must be resolved before closing. Your lawyer protects you by ensuring you receive 'good title', meaning clean, unencumbered ownership, when the transaction completes.

New Brunswick charges a Land Transfer Tax of 1% of the purchase price or the assessed value of the property, whichever is greater. This is paid by the buyer at closing and is handled by your lawyer as part of the closing funds. There are no first-time buyer exemptions in New Brunswick.  The tax generally applies to all purchases. On a $350,000 home, for example, the Land Transfer Tax that needs to be paid to the province by your lawyer on closing would be $3,500. Budget for this cost in addition to your down payment and legal fees.

Closing costs are the additional expenses beyond your down payment that are due on closing day. In New Brunswick, buyers typically pay: Land Transfer Tax (1% of purchase price or assessed value, whichever is greater); legal fees and disbursements (title search, document registration, etc.); title insurance if required by your lender (approximately $250-300); and property tax and fuel adjustments. You may also need to budget for a property survey ($1,000+) if your lender requires one. Ask your lawyer for a rough estimate.

Adjustments are financial credits between buyer and seller calculated as of the closing date. Common adjustments in New Brunswick include: property taxes (if the seller has prepaid taxes for the year, you reimburse them for the period after closing that you will be owning the property; if taxes are unpaid, you pay the full year's taxes and receive a credit from the seller for their portion of the year); heating fuel (if the home has an oil or propane tank, the seller often fills it before closing, and you reimburse them for the fuel); rental fees on propane tanks and other such assets that are remaining with the property and condo fees if applicable. 

Your lawyer calculates all adjustments and includes them in your closing statement.

Title insurance is a one-time insurance policy that protects against title defects that were not discovered during the title search; such as fraud, forgery, errors in public records, or encroachments. Most lenders in New Brunswick require a lender's title insurance policy as a condition of the mortgage. You can also purchase an owner's title insurance policy for your own protection. The cost is typically around $250-300 and is paid at closing. Your lawyer arranges the policy as part of the closing process.

A title search examines legal records to confirm ownership and identify any claims on the property. A survey is a physical measurement of the property by a licensed New Brunswick Land Surveyor showing the exact boundaries, dimensions, and location of buildings, fences, and other features. They serve different purposes. Your lender may require a survey, especially for older properties. Only a survey signed and sealed by a registered New Brunswick Land Surveyor is legally valid. An engineer's sketch or copy of a subdivision plan does not qualify.

Key things your lawyer reviews in a purchase agreement include: conditions (financing, home inspection, sale of your existing home) and their deadlines; what fixtures and chattels are included or excluded; the closing date and whether it is realistic; any representations made by the seller about the property's condition; and the deposit amount and what happens to it if the deal falls through. Never waive conditions without legal advice. Once conditions are removed, you are generally legally committed to the purchase.

Most residential purchases in New Brunswick close within 30 to 90 days of the accepted offer, depending on what conditions are in the agreement. The legal work typically begins after all conditions are waived or completed, which can be as little as 7 to 14 days before closing. Your lawyer will contact you for your mortgage instructions, request closing funds, and guide you through what to bring in advance of the closing date. Communicating early with your lawyer helps avoid last-minute delays.

Yes. A real estate lawyer is required on the seller's side to prepare the deed transferring title to the buyer, discharge your existing mortgage (if any), ensure all closing conditions are satisfied, calculate and confirm closing adjustments with the buyer's lawyer, receive the sale proceeds in trust, pay off your mortgage and any other registered encumbrances, and release the net proceeds to you. 

While the buyer's lawyer focuses on confirming clean title and registering new ownership, the seller's lawyer focuses on discharging obligations. This means: obtaining a payout statement from your mortgage lender; confirming the discharge of your mortgage will be registered on closing; reviewing the purchase agreement to ensure all seller obligations are met; preparing the transfer documents; calculating adjustments owed to or from the buyer; and ensuring the net sale proceeds reach you after all debts and costs are paid.

Sellers in New Brunswick are responsible for: legal fees and disbursements; real estate agent commission (if using an agent); mortgage discharge fees charged by your lender; and adjustments such as prepaid property taxes or heating fuel credited to the buyer. Unlike some provinces, New Brunswick does not charge the seller a Land Transfer Tax, that is the buyer's responsibility. Capital gains tax may apply if the property is not your principal residence, consult an accountant for tax advice.

Your existing mortgage must be discharged (paid out) as part of the sale. Your lawyer obtains a payout statement from your lender showing the exact amount needed to clear the mortgage on the closing date. The buyer's lawyer sends your lawyer the sale proceeds in trust, and your lawyer pays out the mortgage, any other registered debts, legal fees, agent commissions, and adjustments before releasing the remaining net proceeds to you. If you are breaking your mortgage before the end of its term, your lender may charge a prepayment penalty. Ask your lender about this before listing.

Selling and buying simultaneously adds complexity but is common. Your lawyer coordinates both closings, ensuring that the proceeds from your sale are available in time to fund your purchase. The timing of the two closing dates is critical. Ideally, your sale closes first or on the same day as your purchase. If the sale falls through or is delayed, it can jeopardize your purchase. Your lawyer will work closely with both sets of lawyers to synchronize the transactions.

Yes. Refinancing, whether you are switching lenders, increasing your mortgage amount, or renewing with the same lender under new terms, is a legal transaction in New Brunswick that requires a real estate lawyer. Your lawyer registers the new mortgage with the land registry, discharges the old one, arranges title insurance for the new lender, reviews your mortgage documents, and coordinates the flow of funds. Lenders will not advance mortgage funds without receiving confirmation from a lawyer that the registration is complete.

For a refinance, your lawyer: reviews the new mortgage commitment from your lender; conducts or updates a title search to confirm current ownership and identify any new encumbrances since your original purchase; arranges lender's title insurance (required by most lenders, even if you have an existing owner's policy); obtains a payout statement from your existing lender; receives the new mortgage funds from the incoming lender; registers the discharge of the old mortgage; registers the new mortgage; and disburses the funds, including paying out the old lender and releasing any remaining equity to you if it is a cash-out refinance.

Owner's title insurance (which you may have purchased at the time of your original purchase) protects you, it does not protect your new lender. Your new lender requires their own lender's title insurance policy to protect their interest in the property. These are two separate policies for two separate purposes. The lender's policy is typically arranged by your lawyer, and the cost is part of  your closing costs for the refinance.

Renewing means continuing your mortgage with the same lender at the end of your term, often with updated rate and terms. A simple renewal with the same lender and same mortgage amount typically does not require a lawyer. Refinancing means changing the mortgage in a way that requires registration of a new mortgage or other documents at the registry and potentially discharging your previous mortgage. 

This involves things like switching lenders, increasing your mortgage amount, or adding or removing a person from the mortgage. Refinancing requires a lawyer. Renewal usually does not, and is dealt with just between you and your lender.

Yes. Adding a spouse, removing an ex-partner, or transferring partial ownership can be done at the same time as a refinance. This involves both a title transfer and a new mortgage registration, and requires your lawyer to prepare transfer documents in addition to the mortgage documents. Note that adding or removing someone from title may trigger Land Transfer Tax or partial land transfer tax fees and could have income tax implications.  

Your lawyer can advise on the legal side, while your accountant advises on the tax side.

Probate is the formal court process by which a deceased person's will is officially recognized as valid and the executor's authority to administer the estate is confirmed by the court. The Probate Court of New Brunswick issues 'Letters Probate,' which is the official document that banks, investment firms, land registry offices, and other institutions require before they will allow an executor to access or transfer assets. Without Letters Probate, most financial institutions will refuse to release funds (unless what they hold is a fairly small amount and therefore the potential risk is small for the bank) or transfer property, even if you are the named executor in the will.

No, not every estate requires probate. Assets that pass outside of the estate do not go through probate. These include: jointly-owned property with right of survivorship (such as a home owned as joint tenants), which passes to the surviving owner outside of the Will; assets with a named beneficiary, such as RRSPs, RRIFs, TFSAs, and life insurance policies; and assets held in trust. Your lawyer can review the estate and advise whether probate is needed.

New Brunswick charges a probate tax based on the value of the estate subject to probate. For estates over $20,000, the tax is 0.5% of the estate value at the time of death, plus 0.2% of the value at the time of distribution. For smaller estates, the tax is a flat fee starting at $25. On a $400,000 estate, for example, the probate tax at death would be approximately $2,000. There are also court filing fees and legal fees for preparing and filing the probate application. Your lawyer can give you an estimate of total costs based on the specifics of the estate. These percentages and amounts are scheduled to change over the summer of 2026 as the Province adjusts fees that have not been changed in decades, but the expense is still not like what you see on TV.  

The timeline varies depending on the complexity of the estate and court scheduling, and sometimes, the jurisdiction. A straightforward probate application in New Brunswick can often be processed within a few weeks to a few months of filing the required documents prepared by your lawyer. However, the full estate administration process, from the date of death to final distribution to beneficiaries, typically takes 6 to 24 months or more. Complications such as contested assets, missing beneficiaries, outstanding debts, or complex tax matters can extend the timeline significantly.

Letters Probate are issued when the deceased left a valid will and the court is confirming the executor's authority. Letters of Administration are issued when the deceased died without a will (intestate) or when no executor named in the will is willing or able to act. In both cases, the document serves the same practical purpose — it authorizes the named person to administer the estate and is required by banks, land registry, and other institutions before assets can be transferred or otherwise dealt with.

To some extent, yes. But it is usually required when you have assets held by financial institutions that do not have named beneficiaries at that institution (such as RRSPs) or real property that is not held as joint tenants, or the other joint tenant has predeceased you already. Some estate-planning strategies can reduce or possibly eliminate the need for probate on certain assets, but it may impact your own life to the extent that it isn’t worth it for you to be so focused on trying to avoid it. It is increasingly difficult to avoid probate altogether as banks and other entities lean more towards ensuring you, and they are protected from fraud and theft in your estate being distributed where you intended it to go. In most cases, it should largely be considered just a necessary step in dealing with your estate.  

Probate fees in New Brunswick are relatively modest compared to some other provinces, so avoidance strategies are not always worth the complexity they introduce. And let’s face it, you’ll be dead. These are your assets, and you should retain control and enjoyment of your stuff while you are alive. What happens after can be reasonably sorted out by those you leave behind because you left a will and estate planning to do that.  

An executor is the person named in a will (or appointed by the court) to administer the deceased's estate. The role involves: locating and securing the original will; arranging and paying the account for  the funeral (from your estate funds) if not already done; applying for a death certificate and any death benefits; notifying banks, government agencies (CRA, Service Canada, etc.), and other institutions of the death; applying for Letters Probate if required; compiling a complete inventory of all assets and debts; paying valid debts and expenses of the estate; filing the deceased's final income tax return and any required estate tax returns; obtaining a clearance certificate from the CRA; distributing assets to beneficiaries according to the will; and providing a final accounting to beneficiaries. It is a significant responsibility that can take hundreds of hours over a year or more.

The most urgent priorities after a death are: locating the original will (check with the deceased's lawyer, their home, or a safety deposit box); arranging or confirming funeral arrangements; securing the deceased's property and assets to prevent loss or theft; notifying Canada Revenue Agency, Service Canada (CPP/OAS), and any pension providers; and contacting a wills and estates lawyer for guidance. Do not transfer any assets to beneficiaries, pay any debts (other than urgent funeral costs), or distribute any property until you have received proper legal advice.  

Distributing things prematurely or improperly can expose you to personal liability.

Yes. This is one of the most important things executors do not realize. As executor, you have a legal duty (called a fiduciary duty) to act in the best interests of the estate and its beneficiaries. If you make careless decisions, distribute assets before paying debts, make reckless investments, fail to pay the estate's taxes, or otherwise mishandle the estate, you can be held personally liable to repay losses out of your own money. This is why working with a wills and estates lawyer throughout the process is strongly recommended.  

Their fees are paid from the estate, not by you personally.

No. As executor, you are not personally responsible for the deceased's debts. Debts of the estate are paid from estate assets, not from your own funds. However, you must pay valid debts before distributing assets to beneficiaries. In New Brunswick, debts must generally be paid in this order: funeral expenses; secured debts (such as a mortgage); taxes owing to CRA; and then unsecured debts. If you distribute assets to beneficiaries before paying debts and there is then not enough money left to cover creditors, you can be held personally responsible for the shortfall.

In New Brunswick, estate debts are paid before beneficiaries receive anything. The general order of priority is: funeral and burial expenses; costs of administering the estate (including legal fees and executor fees); secured debts (mortgages and liens against specific assets); federal and provincial taxes (CRA must issue a clearance certificate before final distribution); and then general unsecured debts. Only after all valid debts are paid can the remaining assets be distributed to beneficiaries according to the will.

Yes. Under the New Brunswick Trustees Act, executors are entitled to fair and reasonable compensation for their services, paid from the estate. Courts have generally found that a fee of up to 5% of the estate's gross value is appropriate, depending on the complexity and time involved. The will itself may specify an executor’s fee. Executor compensation is considered taxable income and must be reported on your personal tax return. Note that if you are also a beneficiary of the estate, your executor’s fee is separate from and in addition to your inheritance.

As executor, you are responsible for filing all required tax returns for the deceased and the estate. This includes: the deceased's final personal tax return (T1) for the period from January 1 of the year of death to the date of death; a return for any rights and things (certain income not yet received at death, such as unpaid wages); and, if the estate earns income after death, a T3 Estate Trust return for each year the estate remains open. You should also apply to the CRA for a clearance certificate before making the final distribution to beneficiaries. This confirms that all taxes have been paid and protects you from personal liability for any future CRA claims if the return is reassessed a few months later. This puts an end to that possibility.

A clearance certificate is an official document from the Canada Revenue Agency confirming that all taxes owing by the deceased and the estate have been paid or secured. As executor, you should apply for a clearance certificate before making the final distribution of estate assets to beneficiaries. If you distribute assets without a clearance certificate and CRA later determines that taxes were owed, you can be held personally liable for those taxes, even if all the estate assets have already been given to beneficiaries. Your lawyer and accountant will work together to ensure all tax filings are complete and the certificate is obtained.

Beneficiaries have the right to request an accounting of the estate: a detailed record of all assets collected, debts paid, and expenses incurred. If beneficiaries believe you have mismanaged the estate or breached your duties, they can apply to the court to have you removed as executor or to recover losses. The best protection is thorough documentation: keep records of every decision, every transaction, every communication with beneficiaries, and every expense. Providing regular updates to beneficiaries goes a long way toward preventing disputes from escalating.

Estate disputes can arise in several ways: a beneficiary may challenge the validity of the will; a family member who feels unfairly treated may make a dependants' relief claim; co-executors may disagree; or beneficiaries may dispute how assets are being valued or distributed. As executor, you have a duty to act in the interests of the estate as a whole and not to favour any particular beneficiary (including yourself if you are also a beneficiary). If a dispute arises, seek legal advice immediately. Your lawyer can potentially help mediate the dispute, represent the estate's position, or guide you through court proceedings if necessary.

Even if a will is valid, certain people who were financially dependent on the deceased may be entitled to make a claim against the estate if the will does not adequately provide for them. In New Brunswick, the Provision for Dependants Act allows dependants (which can include a spouse, partner, or child)   to apply to the court for a larger share of the estate. As executor, you should be aware of potential dependants' relief claims before distributing the estate, and seek legal advice if there is any possibility of such a claim being made.

You are not legally required to hire a lawyer, but it is strongly advisable, particularly for any estate that involves real property, business assets, complex investments, potential disputes, or significant tax matters. A wills and estates lawyer guides you through the probate application, helps you identify and value assets, advises on your duties and liabilities, coordinates with accountants on tax filings, and helps you obtain the CRA clearance certificate before final distribution. Importantly, the lawyer's fees are paid from the estate, not out of your own pocket. Given that executors can face personal liability for mistakes, professional guidance is a worthwhile investment for almost every estate.