Wills & Estates — Castellano Law Corporation

WILL

Having a Will is vital to ensure that your possessions are divided as you wish, instead of relying on laws which can change over time!

If an individual passes away with no Will, The Intestate Succession Act, C.C.S.M. c. 185, applies to their estate, and sets out specific rules regarding the distribution. Although the rules set out in the Intestate Act concerning the disposition of assets are not unreasonable, they are inflexible and only benefit certain relatives. In addition, acts change, so why leave your wishes in the hands of others and changing legislative provisions?

A Will does not come into effect until an individual has passed away, so it can be changed at any time prior to passing, with the exception of when you have lost legal capacity. However, legal capacity is not the same as medical capacity; for example, a person may have Alzheimer’s, but may still be able to give instructions and complete a Will even after they have lost medical capacity, so long as certain conditions are fulfilled. It is up to the lawyer to assess if the instructions would be valid, given the circumstances.

A Will is a very important document and should be treated as such. If a Will is not drafted properly or does not sufficiently address the distribution of your assets, there is a high probability that it will cost the estate 2-5 times the cost of a properly drafted Will to fix any drafting issues after your passing (and, depending on the issue, sometimes more!), resulting in a smaller estate value to be distributed to your beneficiaries.

As a result, our competitive pricing reflects our dedication to ensuring that a comprehensive estate plan is created, one that works for you and your family, in order to limit any animosity or disagreements after your passing. Our office also works with your other professionals, such as accountants or financial advisors, in order to create that plan.

POWER OF ATTORNEY (POA)

A Power of Attorney gives someone the authority to act on your behalf for financial matters only and is only in effect when you are alive; it has no effect after your passing. Powers of Attorney can be general, giving the person you appoint the power to do whatever you are legally allowed to do, or it can be specific, which only gives the power to perform specific acts such as banking or signing specific documents.

While this may seem like a simple document, many organizations and institutions may or may not accept a Power of Attorney if powers are not specified in the document, so it is crucial that this document is properly drafted.

It is also important to choose someone you trust as your Attorney, as they will have control over your property and financial decisions if you are no longer able to do so by virtue of physical or mental capacity.

HEALTH CARE DIRECTIVE (HCD)

A Health Care Directive is sometimes called a “living will”—but it is not a Will for testamentary purposes. A last Will and Testament is still an essential part of the estate plan.

A Health Care Directive is a critical document because it allows you to express your wishes about the amount and type of health care and treatment you want to receive if you become unable to communicate your wishes. It also provides the opportunity for you to name a proxy (someone you choose to make medical decisions for you in the event you are unable to). A proxy will work closely with your medical team to make decisions on your behalf. This is especially important if you are choosing someone who is not your next-of-kin to be your proxy.

ESTATE PACKAGE

For your convenience, our firm offers an Estate Package that includes a Will, Power of Attorney, and Health Care Directive.