Wills and Estates Law
At one time or other, we must all plan for the care and support of our survivors. This includes transfer of assets to those to whom the deceased either directs or, in the absence of such direction, who are entitled by the law to receive such assets.
Such advance written directive of the disposition of your assets is called a will. Not all written documents that purport to provide directions as to the disposition of assets upon a person’s death will be legally recognized as a will unless certain formalities stipulated by the Will’s Act are observed.
The minimum requirement is that the document be in writing, bear the testator’s signature at the end of the document, and the signature on the document occurs at the same time and in the presence of two witnesses who also sign the document as witnesses. Unless all three persons are present at the same time, the document is invalid, even if at a later date the signatures of witnesses are added to an already-signed document by the person making the will.
The only exception to these requirements is a document directing the disposition of your assets that is wholly written in a person’s own hand-writing, which is dated and signed by them at the end of the document. Called a holographic will, such personally written, dated, and signed document may be accepted by the probate court as valid if it can be reasonably established that the hand-writing of the document is that of the person making and signing the will.
Wills can be simple or complicated, depending on the needs and circumstances of the person making the will, including the nature of the testator’s assets, and the circumstances of the persons whom they wish to provide for.
Wills are testamentary documents, meaning that the content of the will only becomes legally valid upon the death of the testator. At any time before the death of the testator, they are free to make whatever changes to an existing will that they wish.There is a mistaken belief that only those with substantial assets need a will. A will can do more than just stipulate who is to receive a person’s property following their death; a will can also appoint a legal guardian for minor children pursuant to the Guardianship of Children Act.
A further often mistaken belief is that preparation of a will is as simple as filling in the blanks of a pre-existing form or template, or by means of an internet-based service offering on-line completion of a will.
While such might suffice for the simplest of estate plans, such as the leaving of assets to a surviving spouse, such means and services are unable to address the often unique circumstances and needs of persons, including the need to provide for first and second families, children with disabilities including the creation of a trust for such children under the will, the desire of making different provisions for different individuals based on their differing circumstances and needs, and the transference or sale of a business upon the owner’s passing.
Defining an Estate
An estate is a combination of personal, financial, and physical property of a deceased person that, upon their death, they were the legal owner of.
Probate
Simply put, an application for probate of a will is a request filed with the Probate Court by the person named in the will to administer the deceases persons estate for an order confirming that the original will is valid and that the named executor is appointed by the court to take control of and administrator the assets of the deceased person making the will.
Contrary to popular belief, probate of a will is not always required, as many estates may be informally administered without need of an application to the probate court.
Even when such an application is required, such applications are frequently simple and not costly to obtain.
If you are a named executor or executrix under a will, an initial consultation with a lawyer after a person’s passing will give you with peace of mind and the needed guidance and direction in assisting you with the process of securing authority and effectively administering a person’s estate from beginning to final distribution.
Estate Litigation
At times, issues arise with estates that the Probate Court is required to resolve. This might include involving the validity of a will such as if made when the person signing the will lacked mental capacity or was subject to undue influence which prevented the will from being an accurate statement of their testamentary wishes.
If you have concerns that a will may have been prepared and signed in circumstances where the capacity of the testator was lacking due to illness or infirmity or was made the subject of undue influence, an initial consultation to discuss the process of estate litigation and provide objective and realistic advice is essential. Such consultations are best sought within the first two weeks after a person’s passing to ensure the protections of rights of beneficiates and other interested persons of a deceased’s estate.
In addition to concerns with the validity of a Will, at times during the administration of a deceased persons estate, concerns may arise with respect to the conduct of the estate administrator, beneficiaries, or creditors of the estate, and the process for the orderly winding up of the estate and final distribution of its assets. An initial consultation is available to discuss any concerns arising from the administration or distribution of an estate.
Appointments can be pre-booked through our website and are available in the office, by telephone, or by Zoom meeting.
The initial consultation fee relating to the preparation of wills and powers of attorney is credited to my account for services if retained and instructed to prepare these documents.