Making a Will
Making your will is the most important document of estate planning. Your will may be simple or complex, according to your particular circumstances. The most important thing is to make sure that your will is valid and effective.
Making a valid will requires that your will be properly signed witnessed and that you have mental capacity when you sign your will, and that you understand and approve the terms of your will.
It is sometimes a good idea to get a doctor’s report on the day you sign your will, to confirm your mental capacity. This is especially important if there is a possibility that someone might contest your will after you pass away.
You might be tempted to make your own will, especially if you only intend to have a simple will. However the real problem with this is that your will might make perfect sense to you, but when someone else reads it they might not understand it the same way you do. There also may be legal issues, of which you might not be aware, that impact on your will.
Wills with Testamentary Trusts
Your will may include a “testamentary trust.” This is a type of trust that can continue, if you wish, long after you have passed away.
Testamentary Trusts are commonly used:
- To set up a tax-effective structure for your children or other beneficiaries.
- To protect your estate from the potential risk of family breakdown or other financial setbacks among your children or other beneficiaries.
- To provide for disabled children or beneficiaries with special needs.
According to the Succession Law you can change your will at any time, while you retain the mental capacity. Sometimes it is desirable to make an agreement with a spouse that a will is not to be changed without your spouse’s consent.
For example, if you and your spouse each have children from a previous marriage, you might want to leave your estates to each other, with a condition that all of your children and your spouse’s children share equally when you have both passed on.
But if you leave everything to your spouse in your will, he/she is then free to make a new will leaving everything to his/her children alone (or to his/her new spouse).
“Mutual Wills” are one method of ensuring that your estate will go where you want it to go, under your spouse’s will as well as under your own will.
Mutual Wills require the making of two wills, as well as a separate contract that says you both will not change the wills.
Enduring Power of Attorney (“EPOA”)
An important part of your estate planning is preparing for the possibility that you may become incapacitated. This means preparing an Enduring Power of Attorney.
An EPA appoints one or more people to act on your behalf. Your “attorney” is the person you appoint to manage your affairs under your EPA. Your EPA can also give specific instructions, or specify limitations on how your attorney is to act on your behalf.