INTESTACY, TRUSTS AND WILLS
Planning your estate is one of the most important things you can do in your lifetime to protect your family and future generations. By creating a plan for your estate now, in addition to greatly minimizing taxes and maximizing the wealth and benefits that flow to your loved ones, you can ensure that all of your wishes are carried out in the event of severe illness or death.
Did you know you can minimize probate fees by gifting assets during your lifetime rather than dealing with them in your Will?
Did you know that establishing a Trust for children and family can extend your ability to control how and when your assets are disbursed?
Rather than providing a single lump sum amount to your beneficiaries you are able to provide instruction as to how your beneficiaries will receive their share of your assets.
Creation of a Will
A Will (or last testament) is a legal document that speaks from the moment immediately prior to your death. It is a recording in writing of your wishes regarding what happens to your assets when you die and, upon your death, it is your executor’s duty to carry out your wishes in accordance with your Will.
After your death, your executor may be required to submit your Will to the Surrogate Court to determine its validity; this process is called probate. However, the requirement to probate your Will depends on how your assets are held and it may be possible to bypass the probate process entirely. Your Will can also deal with other important issues such as guardianship of minor children and funeral arrangements.
We also encourage our clients to create a personal directive, which sets out your wishes regarding your medical treatment in your final days if you do not have capacity to make those decisions on your own, and an enduring power of attorney, which provides a person of your choosing with the authority to make decisions on your behalf should you become incapacitated.
Wills for blended families are complex and require special knowledge that we have. If your Will is not properly structured, your biological children could lose out in the long run and your second spouse’s children could inherit all of your assets, despite your long life of effort to accumulate for your own children’s benefit.
If you pass away without leaving a Will, you are said to have died “intestate”.
An intestate estate can be more costly and difficult for relatives to deal with because it requires an application to be made to the court for a Grant of Administration. The court appoints an administrator for your estate who then must dispose of your property according to the law regulating the disposition of intestate estates. If you have children, they will receive their share of your estate when they reach the age of 18 years as opposed to receiving their share of your estate at a time that you set in the Will such as at a time when they are more mature, age 25 for example.
At Goodfellow & Schuettlaw, while we are able to assist our clients on obtaining a grant of administration, we encourage our clients to plan for the future and protect their loved ones from having to deal with the confusion and cost of an intestate estate by planning for the succession of their estate and drafting a proper Will.