We go to school, grow up and work hard to acquire things that will keep us and our families comfortable and happy. When we die, we take none of the things that we acquire with us, so what happens to all that we acquire after we are deceased? Well, to use the all-purpose legal response, it depends. What happens to property after the owner is deceased depends on factors such as whether or not the deceased wrote a will, applicable statues, custom and religion.
In reality, one has no control over what happens to their estate after they die, but writing a will is one way to assert one’s desires for the distribution of their property and handling of their affairs after death. Many people avoid talking about wills because the subject of death can be unnerving.Even lawyers take this very important document for granted in their personal lives. It is not unusual to find that a lawyer who, in his lifetime, drafted hundreds of wills for others died intestate (without a will).
What exactly is a will? Black’s Law Dictionary (Second Pocket Edition) defines it as ‘A document by which a person directs his or her estate to be distributed upon death.’ It is that simple. The estate could include real and personal property.
There are basically two types of Wills: the Formal Will, which is a typed will signed by the testator or testatrix (the person making the will) before two competent witnesses. The witnesses cannot be a beneficiary to the Will (the reasoning behind that is easy to understand, the law tries to avoid fraud where possible); and the Holographic Will, which is fully handwritten by the testator or testatrix, with no cancellations, erasures, corrections or amendments. A holographic will is typically unattested, which means that a witness is not needed.
If you have lived a simple life with few property acquisitions, and only a handful of people to “settle”, you can go ahead and write a simple holographic will. If on the other hand, you have lived a good life, acquired lots of property, successfully hidden some skeletons in your closet, then you and your beneficiaries would be better off if you start in your lawyer’s office to decide what will be conferred in a will or by a trust or other gift instrument.
Before you go to your lawyer’s office, make sure that you have listed all of your property (real estate, bank accounts, stocks and shares, pension plans, insurance policies, investments) with their approximate value; listed all your beneficiaries (a will is not the place where you want to mistakenly leave out a loved one or charity close to your heart) and decided who will get what; thought about who you want to name as executor of your will, your personal representative who you trust will carry out your instructions after you are gone; decided on trustees and guardians (if you have children under the age of 18) where applicable; made provisions for the residual estate, the remainder of your estate not specifically mentioned; and don’t forget your debts and how you want any outstanding liabilities to be dealt with.
Please note that a will is generally not the place to state your wishes for your funeral. Wills are generally read after the funeral, so if you want to be cremated and that instruction is in your will, you will most likely be under a cold, marble slab before your beneficiaries find out that you wanted to be taken out in a blaze of fire.
Below are a few things to note about wills:
Your executor
This is your enforcer, your agent, your personal representative after you are gone. The executor of the will controls and manages the assets of the testator (you/the person who has made the will) according to the will. This person also files the will in the Probate office. You can appoint your lawyer, accountant, friend or relative, or trustee institutions as your executor. Choosing a family or friend as executor may cause bad blood in the family but will certainly be cheaper than appointing your lawyer or other institution who will charge a ‘fair and reasonable’ fee for their service as executor. Being an executor is a big responsibility, so make sure that the person you have in mind is willing and able to take on the role.
Codicil
They say the only thing permanent is change so there may come a time when you need to modify your existing will. This could happen for several reasons: birth or adoption of a new child, new wife, discovery of a long-lost sister, divorce, acquisition of new property, whatever. A codicil is the legally recognised way to alter your will.
You may choose to make a completely new will, which must include a clause that revokes any previous will or codicil. It is advisable but not necessary to destroy the old will document and communicate the destruction to your lawyer and witnesses.
Perfecting Your Will
All formal/written wills will be done in three copies. One copy is for the person making the will, the second copy is filed at the probate registry, and the third copy is usually held by the lawyer. The probate office is also where you apply for a Letter of Administration for those who die intestate (without a will).
Make sure that all copies of your will have been signed by you and your witnesses. It is also a good idea to initial every page of the will.
After you go through all this trouble to make your will, some people may still challenge your will for several reasons including that you were unduly influenced in making the will, your signature was forged, you were of unsound mind at the time the will was made, or that your witnesses were incompetent.
Can a will be challenged?
A will can be challenged for a number of reasons, and I will discuss those next week.
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