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Wills and Powers of Attorney

Most people reach the point in life when it is time to think about what happens when they are gone. Who will look after your children? How will your estate be distributed and who will look after that process?

Such issues can be dealt with by way of properly prepared Will.  However, before embarking on this process, you first need to decide whether you even need one.  Yes, in some cases, an individual simply does not need a Will.  For example, imagine that all you have is a house you jointly own with your spouse.  Jointly owned property is transferred on your death to the survivor, i.e., you die, the home passes on to your spouse.  Similarly, if all you have is a life insurance policy which has a beneficiary designated by you, the proceeds of such life insurance will be transferred to such designated beneficiary without a Will.


However, what if your spouse who jointly owns the house with you predeceases you?  Who do you then want to inherit this property?  Or, what if you own more than jointly held property and wish to distribute your estate between different members of your family?  Then you definitely need a Will.


The law imposes certain requirements for a Will to be valid.  Improperly executed Will may be worthless and lead to years of litigation between the heirs.  Also, the person who makes a Will must have mental capacity to do so.  It is a duty of a lawyer engaged in preparation of a Will to make sure that all legal prerequisites are met and the Will accurately represents the wishes of the testator.


Since the Will kicks in after you are gone, it must be carried out by someone else, an executor of the Will.  Special care must be taken in choosing the right person for this job.  It must be someone you trust.  In some cases, people appoint more than one executor and in other cases, an alternative executor is appointed in the event your first choice is unable or unwilling to act as your executor.


It is also important to avoid provisions which can be easily contested.  For example, if you leave nothing to your spouse, he or she can contest your Will.


The distribution itself can also take different forms.  Some property can be transferred in kind.  For example, you may wish to give your antique car to your older son who is into automobiles, or you may want your daughter to inherit your collection of paintings.  On the other hand, the estate can also be distributed in shares.  For instance, you want your entire estate to be distributed equally between your two children.

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If your children are less than 18 years of age at the time you make your Will, you may want to appoint a guardian of such children and also provide for their support until they reach the age of majority or determine the age when they should receive the share of your estate earmarked for them.


The idea of a Will is a gift you leave to your survivors and it is important to make sure they enjoy it rather than fight over it.  That is why it is important to have a Will which is properly drafted and is not susceptible to legal challenges while at the same time properly expresses your wishes.


Often times, you may want another person to deal with your property on your behalf because you are unable to do it yourself.  In such cases, you need a Power of Attorney which authorizes another person to deal with your property.  The Power of Attorney may be “general” which means that your attorney can deal with all of your property or it can be “limited”, i.e., be restricted to specific piece of property or specific transaction.


However, powers of attorney are not limited to property issues.  It is just as important sometimes to empower a trusted individual to make medical decisions on your behalf if you are incapacitated and cannot make such decisions yourself.  A Power of Attorney for Personal Care is employed for such purpose.


Powers of Attorney also have formal execution requirements to ensure their validity and not everyone can be appointed to act as your attorney.  While it does not take long to prepare a valid power of attorney, it is important to do that while you are still capable to grant it.