You should consider who you want to inherit your assets, and who you want to leave in charge of your estate. The government decides otherwise.
We get it: Nobody wants to contemplate his or her own mortality. And you may even feel that, in the context of death, questions about who gets which of your assets seem trivial. That might explain why numerous recent studies have found that only between 35%-40% of people around the globe have a Will.
But the fact is your loved ones will have to address those questions when you’re gone. And by executing a Will and signing a couple of other basic documents you can save them loads of aggravation and unnecessary expense — and grant them the ability to focus on their loss.
So to make this relatively painless, I’ll break it down into ten steps.
1. Understand why you need a will.
A Will lets you tell the world whom you want to get your assets. Die without one — which is known as dying “intestate” — and the Government (of where you hold your assets) decides who gets what without regard to your wishes or your heirs’ needs. The laws about this process vary by country, but if you die in Hong Kong and leave a spouse and kids, your assets will be split between your surviving spouse and children, many people assume that everything goes to your spouse! If you’re single with no children, then the state is likely to decide who among your blood relatives will inherit your estate.
Common-Law countries allow you to gift to whom you like – HK, UK, USA, Australia, Canada, and 75 others allow you testamentary freedom and you should take advantage of this. There are 150 Civil-Law law countries (China, France, Germany) will require you to include your children, even with a Will.
Finally, making a will is especially important for people with young children, because wills are the best way to nominate guardianship of minors. For Hong Kong, you will need a further document called the Appointment of Guardian which allows you to appoint a temporary guardian in Hong Kong if your permanent guardians are from other countries.
I advise a separate Deed of Guardianship to ensure that your children are not caught up in the time delays that can ensue with only guardianship instructions in your will. This is more important these days with Covid-19 running around the globe.
2. Take inventory and pick your team. Start by creating a comprehensive list of your assets, including investments, retirement savings, insurance policies, real estate or business interests, and collectible and sentimental items for each country.
Then spend some time thinking about the following questions:
Whom do you want to inherit your assets?
Whom do you want to name as guardians for your children in the event that you and their other parent dies?
Whom do you want responsible for executing your will?
Whom do you want handling your financial affairs if you’re ever incapacitated?
Whom do you want making medical decisions for you if you become unable to make them yourself?
3. Draft your will. If your finances and wishes are simple, you may find that you can craft a quick and inexpensive will using a web-based legal document service – unless you know the process this is inadvisable as mistakes can be made easily – or you can hire a solicitor to draw up a Will and other documents for you such as Power of Attorney but tend to be more expensive. A Will writer will specialise in this topic and have experience of claims and will cost something in the middle.
4. Name an Executor. A Will also allows you to name your Executor, the person who will be in charge of distributing your property, filing tax returns on behalf of your estate, and processing claims from creditors. Your Executor can be a friend or relative, or a professional like an accountant or lawyer, but it should be someone you trust and who is willing and able to take on the responsibility.
If you name a professional, the executor will be paid from assets in your estate. You should negotiate the amount or rate in advance; compensation can range from hourly fees to a percentage of your assets paid annually. Family or friends can claim back any costs involved from your estate when distributed.
5. Assign Power of Attorney. No one is immune to the loss of mental clarity that may come with aging or from a health crisis. Granting someone you trust the Power of Attorney allows that person — known as your “agent” or “attorney in fact” — to pay bills, manage investments, or make key financial decisions if you are unable to do so. Your agent is empowered to sign your name and is obligated to be your fiduciary — meaning they must act in your best financial interest at all times and in accordance with your wishes.
There are different kinds of powers of attorney depending on the country, for example, Hong Kong requires an Enduring Power of Attorney whereas the USA has Durable POA, which comes into effect immediately or a Springing Power of Attorney should you become mentally incapacitated.
6. Create a living will. A living will (also known as an advance medical directive) is a statement of your wishes for the kind of life-sustaining medical intervention you want, or don’t want, in the event that you become terminally ill and unable to communicate.
Most countries have statutes that define when a living will go into effect, and that sometimes restrict the medical interventions. Your condition and the terms of your directive also will be subject to interpretation. But a patient’s wishes are taken very seriously, so an advance medical directive is one of the best ways to have a say in your medical care when you can’t otherwise express yourself.
Only the Netherlands, Belgium, Colombia, Luxembourg, and Canada allow Euthanasia. Assisted suicide is legal in Switzerland, Germany, Japan, and in the US states of Washington, Oregon, Colorado, Vermont, Montana, Washington DC, and California.
In France, it is illegal which leaves all the other counties in the middle and probably on a case by case basis.
8. Update your will. Review your will about once every year. You’ll also want to update it after a major life change such a birth, death, or marriage, or if you buy some real estate or receive an inheritance. When you do this, also make sure your beneficiary designations on financial accounts, insurance policies, and other assets are up-to-date and coordinated with your will.
9. Communicate with your heirs. Inheritance can be a loaded issue, so be sure to discuss your plans and expectations with your family and friends. The sooner and more distinctly you outline your intentions, the less chance there will be for disagreements when you’re gone.
10. Decide if you need a trust. Contrary to popular belief, Trusts aren’t just for rich people. (Though if you do have significant assets or young children, you’ll definitely want to think seriously about creating one.)
A Trust is a legal structure that lets you put conditions on how and when your assets will be distributed upon your death. Placing assets into a trust may allow you to reduce your estate and gift taxes and to distribute assets to your heirs without the cost, delay, and publicity of probate court, which administers wills. Some also offer greater protection of your assets from creditors and lawsuits. If these benefits sound appealing — and they should — you can learn more about trusts on the next stage of the road to wealth.
In summary, preparing for the inevitable would alleviate the paperwork and confusion that occurs when people die without instructions in place. Your children would be in safe hands and all beneficiaries would receive the right amount of your estate, with the right people in charge.