Both are legal documents prepared concerning an individual’s wishes regarding their possessions, properties, and loved ones. A power of attorney allows you to continue your wishes while you are alive and until your death. On the other hand, a will allows your wishes to be carried out after your death.
If an individual doesn’t have a will when they pass, they are said to have passed away ‘intestate’. In such instances, the courts use a legal formula to decide who gets the assets left by the deceased. The laws of intestacy set the formula according to which the assets are distributed. The law may:
In the absence of a will, any member of the family can apply to the courts for letters of administration. These will give them power as executors of your assets and estate, and they will have the freedom to legally administer the estate at their discretion.
A lost original will isn’t automatically revoked, and a true copy of the original can be used to obtain a grant of probate. If this is not available, the estate will be distributed following the previous will or intestacy.
Dealing with a lost will, can be complicated, so it’s important to keep it safe and accessible at all times. It’s a great idea to keep a copy with the beneficiary or executor, too.
In case a will is destroyed, it will be revoked. The testator can destroy it by tearing or burning it. If you want to write a new will, you can destroy the old version this way.
A well-drafted will, can save your estate significant money. On the other hand, one that is poorly-drafted will result in expensive legal fees and delays in obtaining probate of the will, plus additional court costs.
Also, if your will is confusing, vague, or open to interpretation, you will have to bring it before the court. Then, a judge will interpret the terms. In such instances, without the right legal advice, there may be confusion and uncertainty which results in family conflict and costly, time-consuming estate litigation.
The legal fees associated with a continuing power of attorney for a property, will, and power of attorney for personal care depend on the details involved and the complexity of the will and estate plan. Typically, the fees depend on the estate-related services you choose along with the amount of work and time it takes to prepare them.
If, after your death, your family finds multiple wills, the court will choose the most recent one to settle your assets. If the situation becomes long and complex, a legal professional is assigned to mediate with the families and come up with a resolution. They may resolve issues through probate litigation. So, it’s best to make sure you don’t have more than one will, so your family doesn’t have to go through this trouble.
Beneficiaries are the individuals who will receive your assets in the event of your death. They generally include your spouse, children and de facto partner.
You can divide your assets among them as you see fit. For instance, you may wish to give your children and/or stepchildren a percentage of your assets. However, you may have one beneficiary receive a greater percentage than the other. Or you can divide your assets equally.
Additionally, you can provide specific gifts such as a house, car, jewellery and other items to particular beneficiaries. You can also set up a trust for children and/or stepchildren, and the assets in the trust will be passed to them once they have reached a specific age.
Any debts that the deceased has are the first charge against their assets. This means that the debts have to be paid before any beneficiary can receive the benefits outlined in the will.
Unless you made a will in contemplation of your marriage, any will you made before getting married will be void.
Absolutely. A divorce or separation doesn’t revoke any existing will that an individual has at the time of their death. So, your former partner will inherit from the existing will that was made at the time of the marriage. However, if you don’t have a will, then your former partner or spouse will be entitled to a share of your entire estate.
No. In the event of a divorce, your former spouse won’t remain the trustee or executor of your will.
No. Common-law partners don’t have the same rights over property if the relationship breaks down, as married spouses do upon separation or divorce. Common-law partners also don’t have an automatic right to a share in any property owned by their partner, and there is no ‘matrimonial home’.
That is why it is in the best interests of common-law partners to enter into a cohabitation agreement. This is a document that will clearly define their responsibilities and rights if the relationship breaks down.
Probate, also known as a Certificate of Appointment of Estate Trustee, is a procedure to request that the court grant authority to a person to act as the estate trustee. The authority of the individual named as the estate trustee can be confirmed through the deceased’s will. However, this individual should have the will approved as the deceased individual’s last will for it to be valid.
No, it is not. For instance, small estates do not have to be probated. On the other hand, if there are investments or real estate involved, probate is compulsory.
Estate plans need to be tailored to each individual’s unique circumstances. A well-prepared estate plan may include:
That depends on the nature of the assets. For instance, if an estate consists of only a bank account, it shouldn’t take too long. However, there may be a need to file income tax returns and obtain a clearance certificate. This may delay the resolution of the estate.
On the other hand, if there is a property that needs to be sold or a business that needs to be operated, then it may take longer for the estate to be administered.
In the absence of a last will and testament, it cannot be decided when or at what age your children and/or stepchildren or beneficiaries will inherit your estate. However, if you die intestate and during that time your children are 18 years or older, they will inherit the estate immediately. On the other hand, if your children are minors at the time of your death, a part of your estate (to which your children are entitled) will be held in trust by the courts until they turn 18.
However, in many instances, children aren’t mature enough or able to handle a large amount of money when they reach that age. In such instances, a last will and testament comes in handy to appoint a trustee to manage your estate (i.e. your children’s inheritance) until they reach an age specified by you. Or else, in the absence of a last will and testament, the children will inherit the estate and your assets, regardless of whether they are able to handle it.
With the right words and clear and concise phrasing, you can minimize the chances of costly litigation. A will that has been drafted properly will also reduce probate fees.
If your beneficiaries are unhappy with your will, they can challenge it in court. However, this can be expensive and may ruin the relationships of the people involved, resulting in irreparable financial and emotional damage while they grieve your loss. It’s a good idea to anticipate and prepare for possible disputes by having a comprehensive estate plan in place.