[Please note that this is a general summary of Will, Probate, Administration, Living Will, and other related documents and does not constitute legal advice. As each jurisdiction may be different, you may want to speak to your local lawyer.]

 

SUMMARY OF WILL, PROBATE, ADMINISTRATION, LIVING WILL, AND RELATED DOCUMENTS TEMPLATES:

Members are often confused on which document to use in relation to Will, Probate, Administration, and Living Will. The following table is a quick reference guide:

Documents	When to Use
Last Will and Testament with Spouse and Children	Last Will and Testament made by an individual with spouse and children. Give everything to the spouse first, but if the spouse died first, give all to children in equal share.
Last Will and Testament with Children and No Spouse	Last Will and Testament made by an individual with children but no spouse. Give everything to children and their descendants in equal shares.
Last Will and Testament with Spouse and No Children	Last Will and Testament made by an individual with a spouse but no children. Give everything to the spouse but if the spouse died first, give everything to designated charity / in accordance with the law of intestacy.
Last Will and Testament with No Spouse and No Children	Last Will and Testament made by an individual with no children and no spouse. Give everything to siblings and their descendants, otherwise give everything to designated charity / in accordance with the laws of intestacy.
Power of Attorney – Individual Incapacitated – Financial Affairs	This POA for an individual is to appoint an attorney to manage his / her financial affairs in case he /she becomes incapacitated / lack the mental capacity to make decisions. This is in particular important in the case of one spouse possessing all / most of the financial resources in the family.
Power of Attorney – Individual Incapacitated – Medical Decisions	This POA for an individual is to appoint an attorney to make medical, health, and care decisions in case he /she becomes incapacitated / lacks the mental capacity to make decisions.
Living Will - Advance Directives	Advance directives set out how the patient wants to be treated if they become seriously ill and unable to communicate their wishes. In many jurisdictions, it must be witnessed by a medical practitioner and people who are not beneficiaries of the Will.
Statement / Letter of Wishes - Will and Testament	Statement / letter of wishes to provide general guidance to the executor and set out the reasons for distribution. While the document is not legally binding, it can have strong moral sway. This is particularly important where there could be a potential challenge to the will in case of unequal distributions.
Statement / Letter of Wishes - Trustee of Trust Fund	Statement / letter of wishes to provide general guidance to the Trustee on the distribution of Trust Fund and set out the reasons for distribution. While the document is not legally binding, it can have strong moral sway.
Statement / Letter of Wishes - Medical and Care	Statement / letter of wishes to provide general guidance to the carer and set out any preferences on medical and end of term care. Whilst this may not be legally binding, the carer will generally try to fulfill such wishes.

  

SECTION 1. WILL, PROBATE, AND INTESTACY

If a person leaves a Will after death, he or she is said to have died "testate". A "Probate" will be granted to the "Executor(s)" under the Will to represent the estate. If the deceased dies without a Will, the distribution of the assets and who can administer the estate will be governed by the law of "intestate". A letter of "Administration" will need to be applied from the court.

A. LAW OF SUCCESSION

The most common question is which jurisdiction should govern the administration and succession of estate if some foreign elements are involved. For example, a deceased might have a property in a foreign country, or a foreigner might have property in a country that he is not a resident of. Generally speaking, the following rules would apply in Common Law jurisdictions:

• “Real Property” / “Immovable Property” (e.g. house, apartment, building, land) is governed by the law of the place where the property is located.
• “Personal Property” / “Movable Property” (e.g. money, shares, personal belongings) is governed by the law of the deceased's place of domicile as at the date of death.

As such, it is a good idea for a person to have a will not only in the country of residency but also in each jurisdiction where he / she owns real property.  

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