How to limit issues after death

Brian has several questions relating to Powers of Attorney and pre-paid funerals. He has asked estate planning lawyer Rod Cunich for guidance.

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Q. Brian
I have three questions.

1. My wife and I have all our assets in joint ownership. When the first one of us dies, can the survivor and/or Powers of Attorney continue to access these funds?

A: An attorney can only use an Enduring Power of Attorney (EPOA) granted by their spouse to access the spouse’s accounts while the spouse is alive. An EPOA ceases to operate when the person granting the power dies. A surviving spouse can continue to operate a joint account. Their power to do so is because it is a ‘joint account’.

2. When the second one of us dies, I understand that all assets are frozen pending grant of probate, and unless the funeral of the second has been prepaid, funds are not available for funeral expenses until probate is granted.

A: Correct. Some people have a trusted friend or family member appointed as a co-owner and signatory on a bank account for the specific purpose of enabling that person to access funds to pay expenses before probate is granted. If considering this, however, you need to exercise extreme caution in your choice of person because they would have within their power the ability to clear the account and favour themselves.

3. I am reluctant to prepay our funerals for fear that the funeral director may become insolvent. I would appreciate advice on alternatives, such as funeral bonds, etc.

A: All reputable funeral directors place moneys received from prepaid funerals into an interest-bearing trust account so it is always available and safe if the funeral director becomes insolvent. Funeral insurance and similar products are problematic because people often live so long that they pay more in premiums than the funeral costs and if you stop paying you get nothing in return.

These answers are general information only, not specific legal advice. You should not rely on these answers without specific advice from an expert who can review all the relevant documents and circumstances.

Rod Cunich is a lawyer with more than 30 years’ experience in estate planning. If you have a question for Rod, email it to [email protected].

Disclaimer: This information has been provided by Rod Cunich and should be considered general in nature. Seek legal advice before acting on this information.

Written by Janelle Ward

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