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WILL & ESTATE PLANNING

We can help you write a Will that reflects your desires and ensures that your estate is treated with respect. Through our estate planning process you will feel at peace knowing that your loved ones will be cared for.

Our estate planning process allows you to work through the aspects of your Will at your own pace. We provide a comprehensive Will Planner that gives us the information we need to prepare your estate planning documents and we will be ready to answer your questions about this process.

We work closely with you to help you understand all aspects of your Will including your Enduring Power of Attorney, and Personal Directive.

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UNDERSTANDING WILLS & ESTATES

There are lots of legal terms around wills and estates. Here are some definitions and some answers to common questions about wills and estates. Contact us today if you have questions about wills and estates or need help administering an estate.

What is a personal representative?

A personal representative is sometimes called an executor (male) or an executrix (female). This person is appointed in the Will to carry out the directions of the Will. If the Will does not indicate a personal representative, the Court will appoint one.

A personal representative is also responsible for administering an estate when there is no Will.

Who the testator or testatrix?

This is the legal term given to the person to whom the Will belongs. Testator is the male term and testatrix is the female term.

What is an heir or beneficiary?

This is a very common term when talking about Wills and Estates. A beneficiary is a person or organization who receives money or property from an estate. If the deceased has left a Will, it will name the kind of assets that the beneficiaries receive. This can be in the form of property, an insurance policy, or money, to name a few.

What is intestacy?

Intestacy happens when a person passes away without leaving a Will. If no Will has been left, the Court will appoint a personal representative to administer the estate.

What is a codicil?

A Codicil is a document that amends or changes a Will. Just like a Will, it must be dated, signed and witnessed, and it must refer to the will it is amending.

What does it mean to probate a will?

Probate refers to the process of proving the legal validity of a Will by the court. This process is often necessary to allow the personal representative to act on behalf of the deceased as requested in the Will.

YOUR WILL

What is a Will?

Your Will is an important and carefully worded legal document that outlines how you want your Estate handled after your death. Some people allot their possession to family members, friends or charities.

Your Estate includes all real estate and personal property that you own, but some assets will not be part of an Estate. For example, if you have an insurance policy which has a particular person named as beneficiary, or if you jointly own property to which the right of survivorship applies (i.e., property owned jointly) these will not be part of the Estate.

Should you prepare a Will?

It is important to prepare a Will to guarantee that your wishes are carried out. If you do not have a Will it can be very difficult for your family and beneficiaries to sort out your estate. Many unfortunate family conflicts have resulted from a family member not leaving a proper Will and lengthy and expensive Court proceedings may be necessary before your Estate is settled.

Without a Will, your assets will be distributed according to a scheme stated in the Intestate Succession Act which declares that the surviving relatives inherit certain percentages. The Act’s distribution of your assets may not be what you would have wished. A Will ensures that your estate is distributed to those friends, relatives and charities whom you wish to benefit.

Who can make a Will?

Anyone who is older than 18 and understands the nature and effect of a Will can write a Will. If you made a Will, but did not have testamentary capacity when the Will was executed, the Will is not valid. In this case, your estate would be distributed under the Intestate Succession Act or by a prior valid Will.

How do I make a Will?

A Will drafted by a lawyer will ensure that your wishes are carried out and will prevent misunderstandings or conflicts among beneficiaries. The cost of having a lawyer draft your Will is minimal compared with the costs of rectifying problems caused by improperly drafted and executed Wills.

A lawyer will also assess your need for an Enduring Power of Attorney and Personal Directive. These documents appoint someone to handle your legal and personal affairs in the event of your mental incapacity, and provide direction to your medical care givers if you are hospitalized for a terminal illness.

PERSONAL DIRECTIVE

What is a Personal Directive?

The Personal Directive is a written instruction to another person (your agent), usually a spouse or close family member, that tells them the extent of medical care you wish to receive if you become mentally incapable of making decisions for yourself. This document gives your agent power to make decisions regarding your care, and provides instructions about where you want to live and what activities you want to be involved in if you lose mental capacity. Your Personal Directive can also state whether you want to be resuscitated if the chances of your full recovery are minimal. The clauses in a Personal Directive should be written clearly so that your wishes are carried out.

Why should you prepare a Personal Directive?

If you do not prepare a Personal Directive and you become hospitalized for a serious illness or condition which results in your loss of mental capacity, your family will have to obtain a Court Order that appoints a Guardian before they can make decisions for you. A Court Order will cost your family time and money.

If you lost mental capacity, medical staff would need to receive instructions about your medical care from your close family members as soon as possible, but without a Personal Directive, health care professionals would not have the assurance that your loved ones have the legal authority to provide instructions. Your family and health care professionals could be in a difficult position if they do not know what your wishes would have been.

Who should I choose as my “agent”?

The agent is the person whom you choose to make decisions for you. This person is most often a spouse or close family member who knows your wishes and whom you trust to make decisions about your health care and living arrangements.

Who should prepare the Personal Directive?

Many precedent Personal Directive are available at stationary stores and they are legally valid if signed in front of a witness. However, this is an important document in your estate planning and it should be carefully drafted. A lawyer will guarantee that the document is drafted property and that your wishes will be carried out. Since it is important to be fully aware of the legal effect of a Personal Directive, your lawyer will take care to give you property advice and will record that you fully understood the Personal Directive when you signed it.

ENDURING POWER OF ATTORNEY

What is an Enduring Power of Attorney?

An Enduring Power of Attorney is a legal document that gives a person authority to sign legal documents on your behalf. The Enduring Power of Attorney is signed before a witness and can give the power to deal with bank accounts, investments, cars, houses, etc. It can give another person power to sign any legal document which you could legally sign. The document is called “enduring” since it still has legal effect if you lose your mental capacity and are unable to care for your own financial affairs.

In the Enduring Power of Attorney documents you can specify the powers and direction you give to your Attorney. For example, you can state that you want to live in your house as long as possible and be provided with home care but that if two medical doctors deem it advisable that you not live in your home, then the Attorney will have power to sell the house. You could also put in powers to continue giving Christmas or Birthday gifts to grandchildren.

Why should you sign an Enduring Power of Attorney?

If you became mentally incapacitated and you did not sign an Enduring Power of Attorney, your nearest relatives would have to bring a Court Application to be appointed as your Trustee. No one would be able to deal with your financial affairs, such as writing cheques on your behalf or selling your house, until they obtained a Court Order.

In cases like these the Court Order will appoint a Trustee who will have to file accounts with the Court and obtain approval once every 2 to 3 years. This process is expensive since it involves retaining a lawyer and an accountant to prepare the accounting records. This procedure, however, does provide considerable safeguards in ensuring that your property will be used for your exclusive benefit.

 

If you want to avoid the expenses of a Court Order and have chosen a trusted family member or advisor who can take care of your financial affairs, you should sign an Enduring Power of Attorney.

When does an Enduring Power of Attorney come into effect?

Typically, a person will state that the Enduring Power of Attorney will take effect only if they become mentally incapacitated, a condition which must be verified by two medical doctors. An Enduring Power of Attorney can also take immediate effect and continue if you become mentally incapacitated. An Enduring Power of Attorney can be changed or revoked anytime you wish if you maintain your metal capacity, but it cannot be changed if you have lost your mental capacity.

Who should I choose as my “Attorney”?

The Attorney is the person (or persons) whom you choose to handle your financial affairs. This person is most often a spouse or close family member who knows your wishes and whom you trust to make financial decisions you would have made if you had maintained your mental capacity. You can choose more than one person or a corporate Trustee to act as Attorney, and if the first chosen Attorney is unwilling or unable to act, you can choose an alternate.

Who should prepare the Enduring Power of Attorney?

Many precedent Enduring Power of Attorneys are available at stationary stores and they are legally valid if signed in front of a witness. However, this is an important document in your estate planning and it should be carefully drafted. A lawyer will guarantee that the document is drafted properly and that your wishes will be carried out. Since it is important to be fully aware of the legal effect of an Enduring Power of Attorney, your lawyer will take care to give you proper advice and will record that you fully understood the Enduring Power of Attorney when you signed it.