Wills & Estates

The Executor: First and foremost, your Will appoints a person to act on behalf of your estate after your death. Some of the duties of the Executor are to make sure that your debts are paid, notify the necessary parties and government agencies of your death, settle any claims made by or against your estate, file your taxes, and distribute your property according to the wishes detailed in your Will.

I like to visualize Executors as being appointed in tiers, with second (and sometimes third and fourth tiers) in place in case your first choice is unable or unwilling to act or unable to complete his or her duties.

For example:

Tier 1:   Spouse

Tier 2:   Children (if they are over 18)

Tier 3:   Sibling / Relative / Friend

If you are appointing more than one person on a tier, you must decide whether you want the people named in that tier to have to agree and act together on all matters (in which case they are appointed jointly) or whether you want them to be able to act either together or on their own (in which case they are appointed jointly and severally).

Once your debts have been paid and income tax issues have been settled, your Executor will distribute your estate according to your instructions.

Specific Bequest or Gift: This is a direction to your Executor that a particular item or a specific amount of money is to be given to a particular person or divided amongst a group of people. For example, you may want your wedding ring to be given to your oldest daughter or you may want the balance of a bank account to be divided among your grandchildren.

The Residue: The residue is all of the property that remains after your debts are paid, any claims against your estate have been settled, and your specific bequests have been carried out. There are very few “rules” as to how your estate must be distributed—assuming that you have no legal dependants. The distribution of the residue of your estate may be very simple (leaving everything to your spouse) or more complex (dividing the residue into percentages and leaving certain percentages to your children, grandchildren, nieces and nephews or charities, universities or religious organizations).

Money Held In Trust: A beneficiary must be at least 18 before they can have direct access to their inheritance but most people choose to delay this direct access (common ages are 21 and 25). Many people also choose a staggered inheritance structure, such that the beneficiary receives half of their inheritance at 21 and the remainder at 25.

While in trust, the Executor will manage the money. Most Wills are drafted so that the Executor has the authority to use the money for the benefit of the beneficiary prior to the ages set out in the Trust provisions (to give them money for school, etc.), but the distribution of the money is at the sole discretion of the Executor.

Guardianship: If you have children who are minors, you should include a guardianship clause in your Will. You may want to appoint a second person as a back-up in the event that your first choice is unable to care for the children at the time of your death.

Safekeeping of Your Wills: You are only permitted to have one Will with original signatures.  If your Will is lost or destroyed, you must make a new Will. You may take your original Will home with you, but most of our clients choose to store their Will at our office in our fireproof safe (there is no cost for storage).

Powers of Attorney

A Power of Attorney (POA) appoints someone to act on your behalf while you are still alive but unable to make decisions for yourself (due to an acute medical condition, a progressive medical condition, or simply because you are traveling and unable to tend to financial issues at home). There are two separate documents—a POA for Personal Care and a POA for Property.

A Personal Care POA is appointed by you to make medical and health care decisions on your behalf. I encourage people to talk to their family and loved ones openly and honestly about their wishes for end-of-life decisions (such as the use of artificial respirators, feeding tubes, etc.). You should choose your POA based on how confident you are that this person will carry out your wishes—if you feel strongly that you do not want medically prolonged life support, then you should choose a person who you believe will make the difficult decision to refuse this type of treatment or stop the treatment if it has already begun.

A POA for Property is appointed to make financial decisions for you and has the authority to deal with matters pertaining to your property (such as bank accounts, real estate, mortgages and utility accounts). It is important to be aware that there have been cases of fraud perpetrated by POAs (such as stealing money from bank accounts or a POA transferring property to themselves). I advise my clients to change their POA if they suspect that the person they have chosen may have a gambling, drug or alcohol addiction, or is experiencing financial trouble, as these situations may increase the risk that this person will be tempted to act inappropriately as your POA.

As with a Will, if you appoint more than one person as your POA, you must decide whether they must act jointly, or jointly and severally. Also like a Will, you should appoint a substitute POA in the event that your first choice is unwilling or unable to perform these duties.

While you may only have one Will with original signatures, you may have multiple signed originals of your Powers of Attorney. We typically prepare two originals of each POA—one set for you to take home and one set to keep at our office. Banks, insurance companies, utility companies, etc. do not require original signatures as they will accept notarized copies which we can prepare for you as needed.

If you would like more information, or if you have questions about estate planning, I would be happy to speak with you by phone, by e-mail or in person.