Wills, Estates & Powers Of Attorney
Making Your Will
Everyone
wants to have as much control as possible in relation to what happens
to their property after they pass away. The only effective way to do
this is to make sure that you have a will that sets out exactly what
you want. The laws surrounding wills have traditionally been quite
technical and the only way in which you can be assured that the will
you sign provides what you want it to provide is to have your will
drawn up professionally by your solicitor.
We know
the kinds of problems that can occur in the drafting of wills and in
families, and can advise you about the right provisions for your
particular circumstance. All families are different and many are
blended families making it essential that your will is drawn precisely.
Wills should be regularly updated to take into account changes in
family circumstances and in assets. Making your will is not something
that can be put off forever.
Once you
have signed your will we suggest that you leave it in safe custody
until it is either needed or you wish to change it.
Power of Attorney and Enduring Guardians
Often when
a client consults us about their will we suggest that they also appoint
an attorney and also a guardian. Your will operates from the time of
your death. A Power of Attorney appoints someone to do things from a
legal point of view up until the time of your death. The appointment
can be general or can be very specific in the things that the attorney
can do or as to when the attorney can act. You may want a specific
person to act for you if you are incapacitated. You need professional
advice about this. It is no good leaving the appointment of an attorney
until you need it because, if you need it, you may not be competent to
make the appointment.
While an
attorney can do legal things for you, your guardian is appointed to
look after you personally. A guardian can make decisions for you
concerning health care, where you live and what services are provided
to you. You can give your guardian directions about your wishes and be
as general or specific as you want.
You need
very careful advice tailored to your specific family situation when you
execute these documents.
What Happens When Someone Passes Away?
When a
person passes away it is necessary for the community to know that the
estate is passing to the right people. The right people are the people
nominated in your will or, if you have not prepared your will, your
next of kin as defined by law.
In a
simple estate with no real estate and limited assets the financial
institution usually just requires the executor of the will or the
family to establish their identity and provide them with basic information
and they will release the asset.
In a
larger estate, particularly where the deceased owned real estate in his
or her sole name, a grant of Probate is needed. This is a proving
process where the executor completes documents, which are filed in the
Supreme Court establishing the existence of the will, details of the
assets and other facts required by the court. The court issues a “Grant
of Probate“ and production of that document then enables the financial
institutions and the Land Titles office to know they are releasing the
asset to the right people.
In either
case a large amount of paper work is required. Each financial
institution has their own requirements and the requirements of the
court are quite strict. This is the last thing that you want to be
worried about when you are suffering the grief of the loss of a loved
one. The best way to ensure that your loved one’s estate is finalised as quickly and smoothly as possible is to
consult us. We pride ourselves in making sure that our estate matters are
finalised with the minimum of fuss and a
minimum of effort on your part.
Can a Will be Challenged?
Most wills
made by a solicitor are competently made and are not open to challenge
on the question of their validity. Wills can however be challenged
under the Family Provision Act. This Act allows very specified persons
such as children and the spouse to bring a claim to the court alleging
that the deceased did not make “proper provision“ for
them in their estate.
There is
nothing you can do to stop such a claim being made. What your family
needs is good advice from competent professionals if the situation
arises in which such a claim is made or you want to make such a claim
yourself. We know that it is better to have straight advice that will
lead to the matter resolving rather than have an ongoing dispute at
this most difficult family time.
|
