Why you should have a Will during a Pandemic?

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Date: 1 May 2020

Why you should have a Will during a Pandemic?

 

Death is often a taboo subject that no one likes to discuss. Yet in the face of a pandemic, people are beginning to realise that death could actually be much more imminent than we would like to believe. Undoubtedly, we would all want to ensure our loved ones to be safe and secure even if the worst was about to happen. It is therefore important to be prepared so that they are not left with the triple whammy of dealing with the death, paying for medical and funerary expenses, and being without any financial support to face the worst economic crisis since the Great Depression. Yet the majority of us do not have a Will in place to give our family peace of mind.

 

There are the usual excuses for not making a Will – e.g. “I don’t have the time”, “I cannot afford the legal fees”.  Having a last Will and Testament (the “Will”) in place can help minimise the stress, financial issues, life or death decisions and disputes which your loved ones may face in the times of a pandemic.  Below are some of the ways having a Will can help to protect your loved ones if the unthinkable does happen.

 

 

9 Ways on how a Will can protect your loved ones during a Pandemic

 

1. Let People know who will be Getting Your Assets

 

If you don’t have a Will, under the law of intestacy, the presumption is that your assets will go to your immediate family when you die, or if they are not available, the next-of-kin, who may be a very distant relative. In addition, part of your estate may be spent on heirs tracing service.  If you have no relatives, the state will be the ultimate beneficiary.

 

With a Will, you can decide who to leave your assets to (including money, real property, personal belongings). This is particularly important if you would like to leave assets to beneficiaries who are not related to you, e.g. de-facto spouse, friends or charities or if you want to leave your assets to family members in proportions different to what is mandated by the law. You certainly would not want your loved ones getting nothing whilst leaving your entire life savings to your overseas third cousin whom you had only met once when you were two years old.

 

2. Less Stress and Disputes for Your Beneficiaries

 

A well-drafted Will makes it much easier for your family, relatives, or friends to sort everything out when you die. Without a Will the process can be more time consuming, stressful, and subject to more disputes between competing beneficiaries.

 

With the current crisis still persisting, you would certainly want to make it as quick and easy as possible for your heirs to get the financial support they need should you pass away, instead of adding to their burdens.

 

3. Appoint Executor(s) You Trust 

 

Executor(s) are appointed in your Will to be responsible for administering and distributing your estate. For most common law jurisdictions, the executor must be over 21 years old at the time of administering the deceased's estate. Instead of individuals, you may also consider appointing a trust corporation to act as executor(s).

 

If you don’t have a Will to appoint an executor, any next-of-kin(s) may apply to become administrator(s) of your estate. By having a Will you can avoid having an uninvited next-of-kin applying to court and competing with someone you trust to become administrator(s) of your estate.  

 

In light of the pandemic, you may want to appoint more than one executor in case he / she predeceased you. Up to four executor(s) may be appointed, and if so appointed, they must do everything in relation to the Will together. Alternately, you may pick the executors in order of preference to avoid any disagreement (i.e. A, failing which B, failing which C).

 

You should consult your executor(s) first to determine whether he or she is willing to accept this role before appointing them. When choosing a spouse to be the only executor, you should take into account the possibility that spouse may not survive you or may die at the same time due to the pandemic (see below).

 

4. Immediate Effect

 

If you do not have a Will, your loved ones will need to go through a long and taxing court process to become an administrator of your estate before they can have any access to your assets. This may be especially an issue given that many courts around the world have been shut down during the pandemic. Court administration may take months and may result in family members not having access to vital cash flow in times of need, especially with the loss of income due to the crisis, whilst still having to pay for medical, living and funerary expenses. 

 

With a Will, your executor(s) will be able to get hold of the assets in your estate almost immediately without the need to go through a court process. Many financial institutions do not need a grant of probate to allow for withdrawals from the estate’s bank account for medical or funerary expenses. Where a grant of probate is required, although the coronavirus has resulted in probate applications taking longer than usual to process, it is still much quicker than the court administration process.  However, if the Will cannot be located immediately, this may result in delays in the registration of probate. As such, it is of vital importance that you let your executor(s) and family members know of the existence and location of the Will.

 

5. Appoint Guardians for Your Children 

 

Having a Will is especially important if you have minor children and you would like to appoint a legal guardian whom you can trust before they reach adulthood. You should appoint a person you trust to act as guardian over any children who are minors (below the age of 18) at the time of death. Please ensure that the proposed guardian is properly consulted before such an appointment and provide sufficient contact details of such a guardian.  The guardian, however, cannot displace the rights of a surviving legal parent.

 

You certainly would want to avoid a repeat of Harry Potter’s situation, where Uncle Vernon and Aunt Petunia, as the sole surviving blood relative of Harry (Petunia being Harry’s mother’s sister) were appointed legal guardians. They disliked Harry and treated him badly. Had a Will been made, Harry’s parents could have appointed Harry’s Godfather, Sirius Black, as Harry’s legal guardian instead. Assuming Sirius had not been sent to prison, Harry could have had a much better childhood living with Sirius, who was kind to Harry.

 

6. Standard Distribution under Laws of Intestacy

 

If you do not have a Will, everything you own will be distributed in accordance with the laws of intestacy under Common Law, which may not necessarily result in the way you would expect. For example, if you have spouse but no children, your estate may be split between your spouse and your other family members.

 

In the worst-case scenario of the pandemic, you and your spouse or other close family members may pass away together within a short timeframe. This may result in unintended consequences under the law of intestacy. Assuming A and B are married and B died 5 minutes after A. The law of intestacy assumes the B will first inherit the estate of A, then the couple’s assets will be distributed to B’s next-of-kins. A’s next-of-kins will thus miss out on A’s estate because A died a few minutes earlier.

 

If no provision is made in a Will and a common disaster occurs rendering it uncertain which spouse survives the other, then the younger will be deemed to have survived the elder. In other words, the estate of the elder deceased will pass to the younger of the deceased couple, which will then be further dealt with in accordance with the law. This may result in an undesirable consequence where the family of the younger of the deceased couple being unfairly distributed most of the couple’s assets.

 

You can avoid these unintended consequences by drafting a Will with a “Common Disaster Clause”. This clause is especially important if you have chosen your spouse to be your Executor. A common disaster clause takes into account the unfortunate situation when people may die together or within a short time of each other (e.g. not only in relation to Coronavirus but in the event of a plane crash, natural disaster or terrorist attack).  A common disaster clause would deem the couple to have died together and have special arrangements for the distribution of assets and guardianship of the children.

 

7. Funerary Instructions 

 

As morgues are filling up fast and social distancing means that relatives may not be permitted to attend the funeral, one cannot expect too much in terms of funerary arrangements these days.

 

Nevertheless, you can still include in your Will other wishes, such as funerary arrangements, burial or cremation, religious ceremony etc. They will typically be honoured by executor(s) and family members where possible.

 

8. Stamp Duties 

 

Without a Will, the real properties will be split equally amongst the beneficiaries. This may cause undue complications in the management of properties. Transferring interests in such properties later will also result in stamp duties, which can be astronomical depending on the value of the properties. 

 

As transfers under intestacy are generally exempted from stamp duties, if you own more than one property, it is generally more efficient to give each beneficiary a certain piece of property in the Will as opposed to equally dividing the interests in all the properties of the estate amongst the designated beneficiaries. Having a number of beneficiaries equally interested in one or more properties will commonly lead to disagreements and disputes (e.g. one party would like to sell but another party does not want to sell).

 

9. Inheritance Tax

 

A will may help reduce the amount of Inheritance Tax that might be payable on the value of the property and money you leave behind. You may wish to talk to your local tax expert in this area.

 

 

Can I write my own Will without a lawyer?

 

Whilst the comments above are generic to most common law jurisdictions, it is prudent to go to your local lawyer to see if there are any jurisdiction-specific rules that would apply in drafting a Will. However, it may not be easy to consult a lawyer on your Will in the middle of a pandemic lockdown.

 

If you want to save time and legal costs, you may want to write your own Will (in particular if your family situation is fairly straightforward). It does not need to be legalistic, on any special paper, or signed and sealed by a lawyer. A will is a valid will as long as:

  1. it clearly states your intentions in the distribution of your estate;
  2. you sign and date the Will in front of two independent witnesses (both of which are present at the time of signing) who are not beneficiaries under the Will; and
  3. you have the mental capacity when making the Will and are not under any undue influence or duress.

 

Issues to Consider when Preparing Your Will in a Pandemic

 

If you do make your own Will, rather than worrying about the legal language, the following are some of the issues you should consider:

 

1. What is your domicile?

 

Domicile is the place that is acquired at birth from the father, rather than the place of birth (unfortunately the law, like your surname, is a little sexist). When you reach the age of majority and have subsequently settled in another jurisdiction with the intention of making it your permanent home, then the place of domicile may change.

 

Even though you are confined to your home and cannot travel during this epidemic, your place of domicile may not necessarily be your current place of residence if you do not intend it to be your permanent home. For example, if you have moved from another country to work for a few years but intend to go back to your country of origin, then your country of origin would remain as your place of domicile.

 

Your domicile is important because it governs the law and jurisdiction of your Will and the administration and succession of your estate where there are foreign elements involved. Generally speaking, the succession of your personal / movable properties (e.g. money, shares, personal belongings) are governed by the law of the place of domicile as at the time of death, wherever they are located. So you should always have a Will made at your place of domicile, and a new Will made at your new place of domicile should your permanent home change.

 

2. What about your real / immovable properties?

 

Unlike personal properties, real / immovable properties (e.g. houses, apartments, buildings, land) are governed by the laws of the place where the property is located. If you own real properties outside of your place of domicile, it is a good idea to have a Will in each jurisdiction where you own the respective property.

 

Each Will should be drafted as a separate document and be governed by the laws of the jurisdiction of the corresponding real property. With the travel ban, you do not need to travel to the respective country to prepare the Will there, however, you should try to check if there are any specific local requirements you should comply with before preparing the Will in a particular jurisdiction.

 

For jointly owned real property, you will need to find out if it is owned as joint tenants or tenants-in-common. For joint tenancy, the portion of the property will automatically be passed on to the survivor(s) when one of the owners died. If you own the property as tenant-in-common, your estate will retain the portion of the property to be distributed to your beneficiaries. Even in the case of a joint tenancy, you will still need to include the property in your Will, particularly in light of the pandemic, to cater for the possibility that your co-owner may die with you or before you.

 

3. List of Beneficiaries and Executor(s)

 

In making your Will, you should first make a list of (i) beneficiaries you would like to distribute to; and (ii) executor(s) you would like to administer and distribute your estate.

 

Identifications– you will need to list as many details of your beneficiaries and executor(s) (spouse, children, relatives, friends, third parties, charities) as possible in order to properly identify them:

  • Full Names
  • Addresses
  • Birth dates and / or Identification numbers

Beneficiary and Executor as the same person– a common question is whether a beneficiary can also be an executor? Yes, not only is it perfectly normal and legal to do so, it is actually strongly recommended for a beneficiary with substantial interests in the estate to be an executor to protect his / her interests, unless the beneficiary lacks the capability to do so (e.g. being a minor, too old or fragile, relatively uneducated). As previously mentioned, being an executor is not easy and one may need to take on the following roles to properly administer the estate:

  • Apply for a grant of probate with the Probate Registry
  • Inform the relevant registries and stakeholders of the grant of probate relating to the estate, including companies registry, land registry, banks, insurance companies, financial institutions, other service providers etc.
  • Calculate the value of the estate and any tax / estate duty to be paid
  • Pay off any outstanding debts on the estate
  • Sell / transfer of property and / or investment of the estate
  • Distribution of properties to beneficiaries in accordance with the Will

4. List of Estate Assets and Liabilities

 

To help your executor(s) to discharge their duty, you should also make a list of all valuable assets and material liabilities under your estate.

 

Assets– you should list all your valuable assets, including detailed information about the following:

  • Real properties
  • Savings (bank accounts, money markets)
  • Investments (stocks, bonds, mutual funds, Certificates of Deposit)
  • Pension/ retirement accounts
  • Life insurance policies and annuities
  • Business ownership
  • Cars, boats, planes and other vehicles
  • Pets and other animals
  • Any valuable personal properties. Personal properties are often left to the spouse. If the Will is silent on this matter, these properties will fall into the residue of the estate and will be sold, with the proceeds forming part of the cash residue.

Liabilities– you should also keep a record of amounts of all liabilities, including home mortgages, personal loans, vehicle financing, student loans, business loans, and credit card accounts. 

 

5. Gifts to Non-relatives

 

You may wish to make specific gifts of money, shares, or real estate to certain persons or charities. Please provide specific details (including name and location) of the third party beneficiaries to enable your executor(s) to properly identify them. Some countries may require that a certain proportion of your estate be left to the children or the widow even if it is not stipulated in the Will. 

 

6. Inheritance by Minors

 

If any beneficiary of an estate is under the age of 18, the executor(s) must hold the child’s share in trust (to keep hold of the relevant assets properly on behalf of the child). It is possible to specify an inheritance age later than 18, such as 21 or 25, when it is more likely that the child will be mature enough to manage his or her inheritance. Discretionary powers will therefore be given to the executor(s) to distribute as much of the income and/or capital for the benefit of the child as the executor(s) sees fit before the child can formally receive all the assets.

 

7. Person with a Disability

 

When making a Will, consider special trust provisions for a beneficiary who is disabled. For example, a trustee or a guardian to monitor the assets inherited by the disabled person.

 

 

How DocPro can help?

 

Once you have considered these issues, you can ask a lawyer to draft your Will, or you can do it yourself. If you choose to create your own Will, you may choose to start with one of DocPro’s four forms of Last Will and Testament:

 

Documents

When to Use

Web Links

Last Will and Testament with Spouse and Children

Last Will and Testament made by an individual with spouse and children. Give everything to the spouse first, but if the spouse died first, give all to children in equal share.

https://docpro.com/doc579/last-will-and-testament-with-spouse-and-children

Last Will and Testament with Children and No Spouse

Last Will and Testament made by an individual with children but no spouse. Give everything to children and their descendants in equal shares.

https://docpro.com/doc580/last-will-and-testament-with-children-no-spouse

Last Will and Testament with Spouse and No Children

Last Will and Testament made by an individual with a spouse but no children. Give everything to the spouse but if the spouse died first, give everything to designated charity / in accordance with the law of intestacy.

https://docpro.com/doc582/last-will-and-testament-with-spouse-and-no-children

Last Will and Testament with No Spouse and No Children

Last Will and Testament made by an individual no children and no spouse. Give everything to siblings and their descendants, otherwise give everything to designated charity / in accordance with the laws of intestacy.

https://docpro.com/doc581/last-will-and-testament-no-spouse-no-children

 

How to Apply for Probate?

 

When a person dies with a Will, the executor(s) named in the Will should apply for a Grant of Probate from the relevant Probate Registry in the relevant common law jurisdiction(s). A Grant of Probate serves as evidence to third parties (e.g. government departments, registries, banks, financial institutions, etc.) of the executor's right to deal with the estate of the deceased. As discussed above, for personal properties, a Grant of Probate should be obtained at the jurisdiction where the deceased was domiciled, and for real properties, the Grant of Probate should be obtained from the jurisdiction where the property is located.

 

The timing and procedures for the Grant of Probate vary from jurisdiction to jurisdiction. It would be good to check the websites of the relevant Probate Registries (as listed below) to find out the process, the forms to be filled and documents required.

 

JURISDICTION

PROBATE INFORMATION LINK

AUSTRALIA

 

New South Wales

http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_probate/sco2_probate.aspx

Victoria

https://www.supremecourt.vic.gov.au/wills-and-probate

Tasmania

https://www.supremecourt.tas.gov.au/probate/

Western Australia

https://www.supremecourt.wa.gov.au/W/wills_probate.aspx

Queensland

https://www.courts.qld.gov.au/services/wills-and-probate

South Australia

http://www.courts.sa.gov.au/RepresentYourself/ProbateRegistry/Pages/Home.aspx

Australian Capital Territory

https://courts.act.gov.au/supreme/law-and-practice/wills-and-probate

Northern Territory

https://supremecourt.nt.gov.au/about/registry/wills-and-probate

BANGLADESH

http://bdlaws.minlaw.gov.bd/act-138/part-details-161.html

CANADA

 

British Columbia

https://www2.gov.bc.ca/gov/content/life-events/death/wills-estates/probating-a-will

Ontario

https://www.attorneygeneral.jus.gov.on.ca/english/estates/how_to_apply_for_probate.php

Quebec

https://www.justice.gouv.qc.ca/fileadmin/user_upload/contenu/documents/En__Anglais_/centredoc/publications/collection-AVP/AVP_App_prob_will_978-2-551-19751-4.pdf

Alberta

https://www.cplea.ca/wp-content/uploads/EstateProbate.pdf

Newfoundland and Labrador

https://court.nl.ca/supreme/general/wills.html

Manitoba

http://www.manitobacourts.mb.ca/court-of-queens-bench/frequently-asked-questions/probate-division/

New Brunswick

https://www.courtsnb-coursnb.ca/content/cour/en/probate-court.html

Northwest Territories

https://www.justice.gov.nt.ca/en/files/estate-administration/Questions%20and%20Answers%20about%20Wills.pdf

Nova Scotia

https://www.courts.ns.ca/probate_court/nspbc_home.htm

Prince Edwards Island

https://www.princeedwardisland.ca/en/legislation/probate-act

Saskatchewan

https://sasklawcourts.ca/index.php/home/court-of-queen-s-bench/wills-and-estates/probating-an-estate

Nunavut

http://www.nunavutcourts.ca/probate-civil

Yukon

http://www.publicguardianandtrustee.gov.yk.ca/1488.html

HONG KONG

https://www.judiciary.hk/en/court_services_facilities/probate.html

INDIA

 

Andhra Pradesh

http://registration.ap.gov.in/PdfFileView?url=ProbateWill_FAQ.pdf

Bihar

http://www.bhumijankari.gov.in/Admin/AdvSearch/AdvSearch.aspx

Chhattisgarh

http://highcourt.cg.gov.in/

Haryana

https://highcourtchd.gov.in/?trs=ro_vol_2

Himachal Pradesh

https://hphighcourt.nic.in/

Jammu and Kashmir

http://districtcourtsnamchi.nic.in/laws/indian_succession_act_1925.pdf

Jharkhand

https://jharkhandhighcourt.nic.in/sites/default/files/rules/rules.pdf

Karnataka

http://dpal.kar.nic.in/Kanunu%20padakosha%20PDF%20Files/.%5CHighcourtR%5CHC(Probate)1964.pdf

Kerala

http://keralaregistration.gov.in/pearlpublic/downloads/REGISTRATION%20ACT.pdf?tok=4jjfjjj4j4sjdj

Madhya Pradesh

https://www.lawyersclubindia.com/experts/Applicability-of-probate-in-state-of-madhya-pradesh-377521.asp

Manipur

https://hcmimphal.nic.in/Documents/EOG_457_08-02-2019.pdf

Meghalaya

http://meghalayahighcourt.nic.in/

Mizoram

http://ghcazlbench.nic.in/index.html

Nagaland

http://kohimahighcourt.gov.in/

Punjab

https://highcourtchd.gov.in/?trs=ro_vol_2

Rajasthan

https://igrs.rajasthan.gov.in/writereaddata/Portal/Images/pdf/registration-act-1908.pdf

Sikkim

https://eastsikkim.nic.in/registration/

Tamil Nadu

http://www.tnreginet.net/act_rules/registrationstandingorder.pdf

Tripura

http://thc.nic.in/A.C.R%20format%20for%20Judicial%20Officer-Page_FINAL.pdf

Dadra and Nagar Haveli

http://districtcourtsnamchi.nic.in/laws/indian_succession_act_1925.pdf

Delhi

http://delhihighcourt.nic.in/writereaddata/upload/courtrules/courtrulefile_5v1zjf9s.pdf

Puducherry

http://www.hcmadras.tn.nic.in/hcrules.html

IRELAND

http://www.courts.ie/Courts.ie/Library3.nsf/pagecurrent/C3A7F571BC2361D88025810F005B752B?opendocument

NEW ZEALAND

https://www.justice.govt.nz/courts/high-court/apply-for-probate-and-get-copy-of-will/

SINGAPORE

https://www.familyjusticecourts.gov.sg/docs/default-source/family-courts/probate/probate_toolkit_nov2018.pdf

SOUTH AFRICA

https://www.justice.gov.za/master/deceased.html

SRI LANKA

http://publictrustee.gov.lk/wp-content/themes/publictrustee/pdf/Civil_Procedure_Chapter_38.pdf

 UNITED KINGDOM

 

England and Wales

https://www.gov.uk/applying-for-probate

Scotland

https://www.scotcourts.gov.uk/taking-action/dealing-with-a-deceased%27s-estate-in-scotland

Northern Ireland

https://www.nidirect.gov.uk/articles/applying-probate

 

 

 

 

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