Who should have my assets when I die? Deferring that decision.

When contemplating a will, it is sometimes difficult for a person to decide how to distribute their assets, if they believe a change of circumstances for their intended beneficiaries is possible.

There may be a child who has special needs. Whether the needs of that child will diminish in the future may be unclear.

There may be a disparity in the wealth or financial means of some members of the will maker’s family which the will maker wishes to address. It could be that the disparity will change in the future so will it be fair when the time comes, if a greater benefit is provided for a particular beneficiary?

There are a number of ways these issues can be addressed. It is possible to include in a will a discretion for the trustees to distribute the assets after considering the factors that the will maker has asked to be addressed. So when the time comes the trustees will be able to consider any circumstances that may have changed since the will was signed.

It is also possible to give the trustees or some other person a power of appointment which effectively allows the person given that power to decide who should get what proportion of the assets at some time in the future. That may be immediately after the death of the will maker or even at some later time specified. A power of appointment could be used to exclude some beneficiary for some reason that may only be apparent in the future.

A will should be kept up to date at regular intervals. However, there are some situations where the giving of discretionary powers or powers of appointment are useful tools to achieve the flexibility required by the will maker.

There are some special rules that apply to the use of discretions and powers of appointment so proper advice should be taken. It may also be better to consider transferring assets to a trust immediately rather than making these types of arrangement in a will.

It is always best to obtain proper legal advice from your lawyer before considering any of these options.

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