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A question about Wills

Linbrusco

Registered User
Mar 4, 2013
1,625
Auckland...... New Zealand
Before I make an appt with our family lawyer has anyone been in this situation?

Mum has AD & Dad has cognitive impairment.
3 yrs ago Mum & Dad completed their POA's for financial naming my sister & I, and also health & welfare naming me.
Their wills were made 20yrs ago, until now have never seen them, but were told my sister & I were executors.

Going through Mum & Dads paperwork today as I wanted to put important stuff away for safekeeping I came across copies of their wills.

Mum & Dad have named each other as executors leaving their share to each other, but my sister & I are only executors upon the survivor of the two.
In the event of Mum or Dad passing away neither of them ( namely Mum) would have the capacity to understand the legalities of probates/completing/signing paperwork etc

Mum has already been deemed by her GP lacking capacity to make decisions regarding her health, but nothing else has been formalised with our lawyer.

From the little I have googled online, it states that if your Executor is incapacitated or has since died you should update your will and name another person.
 
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Quilty

Registered User
Aug 28, 2014
1,051
GLASGOW
When my dad died my mum in theory was executor. She had no dementia at that point but could never have been able to do this. The lawyer did everything and we paid the bill. You could ask the lawyer what needs to happen now or in the event of one of your parents passing. Itcwould put your mind at rest. Having poa might be a factor.
 

jugglingmum

Registered User
Jan 5, 2014
5,816
Chester
I can't see it being different in NZ, but you have to have capacity to make or amend a will so do you think your lawyer will deem her to have capacity?

Otherwise you are left as it is and will is deemed to have no executors but is still valid.
 

Jessbow

Registered User
Mar 1, 2013
3,041
West Hertfordshire
same situation when my father passed away.
When the first goes, there isn't very much to be done. What needed to be done ( bills transferred into mums name etc.), I put in writing on behalf of mum including a copy of my POA. didn't have any problems. In the case of banks and things, I took mum with me, explaining that my father had passed away.

When my mother sunbsequently died, I was named as executor so was able to apply for probate etc.


I think I am right in saying that you wont need to apply for probate if pretty much everything goes to surviving spouse.
 

Pickles53

Registered User
Feb 25, 2014
2,474
Radcliffe on Trent
My cousin was the executor of her daughter's will and OH and myself were named as executors if she died before her daughter. In fact, the daughter died first. Mother did not have dementia but was very elderly and frail so did not want to take on all the paperwork. We had to apply for permission to administer the daughter's estate but this was pretty straightforward. We instructed a solicitor to manage the probate process (it was a large and complex estate estate with inheritance tax liability) so a solicitor was instructed to handle everything and the change of executor was the first piece of work she did.
 

Linbrusco

Registered User
Mar 4, 2013
1,625
Auckland...... New Zealand
Thanks all for your replies.
May still have to see the lawyer as the next questions is rules regarding future residential care and determining value of assets and funding thresholds.
What a minefield! :)
 

Isabella41

Registered User
Feb 20, 2012
904
Northern Ireland
Surely the fact you have POA means you can act as the executor for the surviving parent. Then when the other parent passes away the estate would divide equally between you and your sister. I am almost certain an attorney can make a small change to a will where it can be shown this is what the person would have wanted. In your case I'm sure it was your parents intention that their daughters would inherit their estate.
 

Linbrusco

Registered User
Mar 4, 2013
1,625
Auckland...... New Zealand
As it stands if either Mum or Dad pass away their estate is left to each other, but they have named each other as executor ( which neither of them have the capacity to do)
When the survivor of passes away, then my sister and I are executors with the remaining estate left equally between my sister, brother and I.

Its the naming of each other as executors when neither would have the capacity to know what to do is our concern.
Even though my sister and I have POA for both parents, its of my understanding a POA cannot stand in for an executor of a deceased estate( in New Zealand anyway)
Will soon find out from our lawyer what may need to be done.
 

nitram

Registered User
Apr 6, 2011
20,619
North Manchester
In the UK if the only named executor lacked capacity to act somebody would have to apply to the Probate Court to act as personal representative, a person with LPA for the executor would be an obvious choice and would probable be accepted.