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.
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