Making a Will
A Will is the most important document of estate planning. Complex or simple, your Will should be written with your personal circumstances and wishes in mind. The validity and effectiveness of your Will is important.
A valid Will requires the Will to be properly signed and witnessed that you have the mental capacity to understand and approve the terms of your Will. Often people will obtain a report from their GP on the day they sign the Will confirming their mental capacity to make and understand the Will. This is essential if there is a possibility that someone might contest your Will after you pass away.
While you may be tempted to make your own Will or use a templated service, particularly if you only intend on having a simple Will, it is a good idea to at least have your Will looked over by an experienced lawyer. What makes perfect sense to you may not be understood in the way you intend it to be when someone else reads it. There may also be legal issues which impact the validity of your Will which you may not be aware of.
Wills with Testamentary Trusts
Your Will may include a Testamentary Trust. This is a type of trust that continue as long as you wish after you have passed away (with an 80-year maximum). These trusts are commonly used:
- To set up a tax-effective structure for your beneficiaries.
- To protect your estate from the potential risk of family breakdown or other financial setbacks amongst your beneficiaries.
- To provide for disabled or special needs beneficiaries.
A Will can be changed at any time as long as you retain the mental capacity to understand the Will. In some circumstances, it is desirable to make an agreement with a spouse that a Will cannot be changed without your spouse’s consent.
For example, if you and your spouse each have children from a previous marriage, you may want to leave your estates to each other with the condition that all of your children, and your spouse’s children share equally when you both have passed on.
However, with a standard Will, if you leave everything to your spouse, he/she is free to make a new Will leaving everything to his/her children alone or to their new spouse.
A Mutual Will is one method of ensuring your estate will go where you want it to go, under both your own Will and your spouse’s Will. This requires making two Wills, as well as a separate contract which states that you will note change the Wills without the consent of the other party.
Enduring Power of Attorney (“EPOA”)
An essential, and often-forgotten, part of estate planning is preparing for the possibility that you may become incapacitated at some point. To be prepared for any eventuality, you need to prepare an Enduring Power of Attorney.
The EPOA appoints one or more people to act on your behalf in a range of matters which can be enacted at any stage. Your “attorney” is the person you appoint to manage your affairs under your EPOA. This document provides specific instructions or limitations on how they act, and what powers they have on your behalf, as well as when these powers come into place.
No one likes to think too far into the future but planning your Will to reflect your wishes is essential. Speak to the team at Forest Lake Law Practice about your estate planning options.