One issue that can greatly complicate things is if the executor of the Will dies or is incapacitated. Not having an executor can complicate things and has the potential to lead to court proceedings.

The last thing you want is difficulties in dealing with your Will for your bereaved loved ones. You want the Will to be the last thing they have to worry about at such a sad time.

So, what will happen if an appointed executor is unable to fulfil their duties in handling a deceased person’s estate?

What is an executor?

An executor of a Will is the person appointed to administer the estate of the deceased.

Basically, an executor is a party charged with carrying out the instructions of a Will.

What if the executor dies?

An executor can die at two different times during the lifetime of a Will, and each situation creates its own problems.

If the executor dies before the maker of the Will or is not available

When you appoint an executor, you clearly expect them to outlive you. However, this might not be the case. It may also happen that they are not able to execute your Will for another reason such as distance or mental impairment.

The best thing to do from the outset is to appoint one or more backup executors.

If you have yet to appoint backup executors and your executor dies before you, it is best to update your Will right away with a new executor.

If you don’t appoint a new executor, another party can apply to the supreme court to become the executor. The court will normally agree to a person with a large interest in the estate becoming the executor, but it will be out of your hands and may not end up being your preferred person.

The executor dies shortly after the Willmaker

This is a more complicated situation.

Of course, if you have appointed backup executors, then the job will go down the line to the next surviving executor.

If there is no executor, then someone will need to apply to the court for Letters of Administration With the Will Annexed.

These documents will grant the applicant the authority of an executor.

Normally, the court expects that the applicant is a beneficiary of the Will, has the written consent of other beneficiaries and that the Will is legal and current.

Protecting your Will and your loved ones

There are a few tips for getting your Will right and ensuring you have no trouble with your executor:

• Appoint more than one executor: Have a preferred and a backup executor so there is less stress caused by an executor not being available.
• Review your Will regularly: You may have done your Will long ago and need to remember who you appointed as your executor. Conduct an annual review to ensure your Will is always up to date. You can confirm your executor is alive and well as part of this process
• Make sure your Will is correctly drafted: Work with a legal professional to ensure your Will is valid and has been signed by the right people, including your executor.
• Speak with your executor or update the executor: It’s worth touching base with your Will’s executor from time to time to ensure they are still comfortable with their role. If they aren’t or if you would prefer to have someone else do the job, find someone else and complete the necessary paperwork.

Is your Will up to date?

Having your Will professionally prepared and kept up to date by a lawyer who specialises in this area makes sense, particularly if your Will and estate are more complex.

When you have an up to date and legally binding Will as well as reliable executors, you will have peace of mind about your family being protected and provided for in the event of your death.

Give yourself and your family peace of mind. Reach out to Legal Affairs Lounge to start preparing your Will today.

Disclaimer: The information contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice. Whilst the information is considered to be true and correct at the date of publication, changes in circumstances after the time of publication may impact upon the accuracy of the information.

Trademarking can be complex and it makes sense to complete the process with the help of a legal professional who understands how it all works.

Wondering how to trademark and why you need to? Here are some essential facts.

1. Why trademark?

Businesses brand themselves so they can be easily recognised and stand out from the competition. The trouble is it’s simple for someone to look at what you’re doing and then copy it.

Trademarking gives you ‘ownership’ of a phrase, logo, image, brand name or even a scent and prevents others from replicating what you do in order to make money.

For example, the phrase ‘I’M LOVIN’ IT’ is trademarked by McDonald’s. Paris Hilton trademarked the expression she became known for; “That’s hot”. This doesn’t mean nobody is allowed to say those words out loud… just that they can’t be used for commercial purposes. The lighting on the Eiffel Tower is trademarked so people can’t sell images of it lit up at night. And athletes are officially prevented from copying sprinter Usain Bolt’s signature victory pose.

If you forget to trademark, it’s possible for someone else to trademark your name/logo etc and then take action against you, even though you were the first to market.

2. Not everything can be trademarked

For example, you can’t trademark the word ‘lawyer’. It is far too broad and there are other operators who have the right to use this term.

When you go through the trademark process, you’ll first need to make sure what you want to trademark isn’t already protected from use by someone else. Many businesses have gone a long way down the branding path before they realise they can’t use the name or slogan they want.

With that being said, if you find a trademark similar to yours, you might still be able to claim it for yourself — if your business is very different. For example; Straight Line Graphic Design vs Straight Line Business Coaching. These businesses would not compete with each other and therefore may both be able to apply for a trademark around the wording ‘Straight Line’.

Facebook has trademarked the word ‘face’. However this only applies to social media companies that may be considered competitors.

3. Trademarks aren’t automatically approved

The trademark process involves application, review and approval. You may be asked to provide evidence that you require the trademark and you may need to supply a logo as well as a business name, plus additional information about your business and what you do.

There is also a period where other operators have the right to object to your trademark before it is finalised.

Because the process takes a while and involves a review process, there are costs involved. You’ll have to pay to apply for a trademark and to register it.

There are also costs involved with engaging a lawyer who knows how to trademark. However, when you consider that following the process correctly can save your business from being eclipsed by a competitor, it’s worth the money.

4. Trademarks expire

Businesses come and go and trademarks don’t last forever either. Generally, the validity of a trademark is ten years from approval.

5. Trademarks aren’t patents (or copyright)

Trademarks protect a name, logo, jingle etc that separates your brand from other operators and gives you the rights to use it exclusively.

A patent is more around a concept or invention. You may come up with a new computer program innovation and patent it so that nobody can take it to the market before you.

The term copyright covers the content your business creates. For example, if you write a guidebook, it counts as original work and can’t be recreated by others.

Need help to figure out how to trademark? The team at Legal Affairs Lounge will help you figure out if your application will be approved and streamline the experience so you can focus on other things. Reach out to us today.

Disclaimer: The content contained in this news post is general in nature and is intended to provide a general summary only and should not be relied on as a substitute for legal advice.