A new will automatically revokes a previous will unless there are very specific terms in the new will to continue to maintain terms in the old will. If a lawyer is holding a prior will that is now revoked because of a new one being made, it is usually wise to notify the lawyer holding the old will. That way the lawyer can take the old one out of safekeeping and return it to be destroyed.

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Probate refers to a legal procedure within the court that confirms the legitimacy of a will. Third parties such as financial institutions and land registry offices rely on the court’s certification to ensure the will’s credibility and to establish that the designated Estate Trustee has the rightful authority to manage the estate. The court issues a Certificate of Appointment of Estate Trustee with a Will to the individual specified in the will as the Executor or Estate Trustee. To acquire this certificate, the typical procedure involves submitting the original will, along with an affidavit of execution affirmed by one of the witnesses to the will, and completing the necessary court forms that outline details about the deceased, estate trustees, beneficiaries, and the will itself. Additionally, the application must include payment for the Estate Administration Tax. This process generally entails submitting documents and fees at the local court office where the deceased resided, and it is seldom necessary for anyone to physically appear in an open court setting.

In situations where you lack the capacity and do not possess a power of attorney, the Office of the Public Guardian and Trustee intervenes. This governmental body is tasked with safeguarding individuals in vulnerable positions. Your finances are handed over to the Public Guardian to ensure your protection. Should you have family or relatives, they are required to petition the court since they do not possess your power of attorney. This necessity arises as they must be legally appointed by a judge as the guardian for managing your property.

The process of securing this court appointment takes several months and incurs substantial costs, often amounting to thousands of dollars. The government’s involvement in your financial matters might not be welcomed universally. It is possible for you to express objections. Additionally, your relatives may feel compelled to contest the involvement of the Public Guardian through the court system. Legal representation will be essential for all parties involved, along with the need for experts to establish whether you are capable of managing your own affairs. The financial burden for this legal process falls upon your relatives who must navigate through extensive paperwork. Furthermore, providing medical evidence of your ability to handle your finances becomes crucial. Engaging in court proceedings could significantly deplete your bank account, often costing tens of thousands of dollars.

What if you lack the financial means to engage in this legal battle?

If financial constraints are a concern, your court-appointed guardian might decide that you cannot continue living in your current residence and could potentially sell it. Moreover, they could relocate you to a care facility without necessarily considering your preferences. (This could have been avoidable if you had chosen an attorney who would honor your wishes.) Your court-appointed guardian might redirect you to a care home, making decisions about your living situation without your active input.

Consider the scenario where you had previously signed a power of attorney. In such cases, your appointed attorney would have been authorized to make decisions on your behalf. This highlights the fundamental distinction between an “attorney” as a decision-maker and the term “lawyer.” An attorney acts as your representative to make choices in your stead.

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