Writing a Will isn't the most pleasant of tasks or an easy discussion to have with your loved ones. After all, by doing so you're not only acknowledging your own inevitable demise but actively planning for it. That might explain why so many adults avoid this cornerstone of estate planning. According to recent studies, 3 out of 5 people who are working, over the age of 45 don't have a Will.
But creating a Will is one of the most critical things you can do for your loved ones. Putting your wishes on paper helps your heirs avoid unnecessary hassles, and you gain the peace of mind knowing that a life's worth of possessions will end up in the right hands.
A Will is an important way you can stay in control over who gets what of your property – and can saved your loved one’s time and money.
The laws governing Wills vary from country to country. Some have common law rules, whereby you can elect who you like (charities, your pet, non-family) for inheritance and some have civil law rules, whereby you must include descendants (children, grand-children) – if you are not aware of the rules in your country of residence, consider talking to an estate planner.
Here are some helpful guidelines:-
What is a Will?
A Will is simply a legal document in which you, the testator, declare who will manage your estate after you die. Your estate can consist of big, expensive things such as a vacation home but also small items that might hold sentimental value such as photographs. The person named in the Will to manage your estate is called the executor because he or she executes your stated wishes.
A Will can also serve to declare who you wish to become the guardian for any minor children or dependents, and who you want to receive specific items that you own. Someone designated to receive any of your property is called a "beneficiary."
Some types of property, including certain insurance policies and retirement accounts, generally aren't covered by Wills. You should've listed beneficiaries when you took out the policies or opened the accounts. Check if you can't remember, and make sure you keep beneficiaries up to date, since what you have on file when you die should dictate who receives those assets.
What happens if I die without a Will?
If you die without a valid Will, you'll become what's called intestate. That usually means your estate will be settled based on the laws of your country that outline who inherits what. Probate is the legal process of transferring the property of a deceased person to the rightful heirs.
Since no executor was named, a judge appoints an administrator to serve in that capacity. An administrator also will be named if a Will is deemed to be invalid. All Wills must meet certain standards such as being witnessed to be legally valid.
An administrator will most likely be a stranger to you and your family, and he or she will be bound by the letter of the probate laws of your country. As such, an administrator may make decisions that wouldn't necessarily agree with your wishes or those of your heirs.
Should I have a separate Will to my spouse, or a mirror Will?
If you want your assets to be distributed separate to your spouse, then you should have a single Will. If you are happy to have the same distributions from your estate then you should have a mirror Will.
A single Will is a Will for an individual. Single Wills are not designed to be used for couples who want to have similar clauses in their Wills.
Mirror Wills are designed for couples to make life easier. These are two separate Wills which would set out the same wishes for couples in their Wills, so a husband, wife or partner would make (almost) alike Wills, hence the term ‘mirror’ is used. One Will is to be signed by one spouse and the other Will by the other spouse. These two Wills essentially mirror what the other says.
Note that it is possible to make minor difference between the two Wills, if required.
Who should act as a witness to a Will?
Any person can act as a witness to your Will, but you should select someone who isn't a beneficiary or executor. Otherwise there's the potential for a conflict of interest. The technical term is a disinterested witness.
Wills require 2 witness signatures, and these should be the same age or younger than you.
Who should I name as my Executor?
You can name your spouse, an adult child, or another trusted friend or relative as your executor. If your affairs are complicated, it might make more sense to name someone someone with legal and financial expertise. You should also name contingent Executor/s in case the first level fails.
How do I leave specific items to specific heirs?
If you wish to leave certain personal property to certain heirs, indicate as much in your Will. In addition, you can create a separate document called a letter or expression of wishes that you should keep with your will.
A letter of wishes, which isn't legally binding, can be written more informally than a Will and can go into detail about which items go to whom. You can also include specifics about any number of things that will help your executor settle your estate including account numbers, passwords and even burial instructions. You can specify family heirlooms that you wish to pass down, such as the silver for Aunt Sally and the china for Cousin Billy, request the education or religion of your children and any other personal matters you feel important.
Your Executor/s carry out these wishes for you and will not be held up by the courts.
How often does a will need to be updated?
It's possible that your Will may need to be updated throughout life.
With that in mind, you may want to revisit your Will at times of major life changes. Think of pivotal moments such as marriage, divorce, the birth of a child, the death of a beneficiary or executor, a significant purchase or inheritance, and so on. Your kids probably won't need guardians named in a Will after they're adults, for example, but you might still need to name guardians for disabled dependents.
A rule of thumb: Review your will every two or three years to be safe.
Who has the right to contest my will?
Contesting a Will refers to challenging the legal validity of all or part of the document. A beneficiary who feels slighted by the terms of a Will might choose to contest it. Depending on which country you live in, so too might a spouse, ex-spouse or child who believes your stated wishes go against local probate laws.
A Will can be contested for any number of other reasons: it wasn't properly witnessed; you weren't competent when you signed it; or it's the result of coercion or fraud. It's usually up to a probate judge to settle the dispute. The key to successfully contesting a Will is finding legitimate legal fault with it.
A clearly drafted and validly executed Will is the best defense.
We’re here to help and answer any question you might have. We look forward to hearing from you.