Secure Your Legacy: The Top 10 Issues to Consider When Writing a Will

We all understand the importance of making a Will, which can help minimise the stress, financial issues and disputes our family may face if something unfortunate happens. In particular, a Will is essential if you have children or grandchildren you want to take care of. 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”). Although a Will is a legal document, it is perfectly legal to make your own Will at home, especially if your family situation is relatively straightforward. You can do it yourself so long as you know what to include in your Will.

Do you know what issues you will need to consider when writing a Will? This is relevant whether you are asking a lawyer to draft one or making a Will on your own. A Will does not need to be legalistic, on any special paper, or signed and sealed by a lawyer. The following are 10 issues you should consider when making your Will: 

1. How many Wills do you need?

Firstly, ask yourself - "What is my domicile?" 

Your domicile governs the law and jurisdiction of the administration and succession of your estate where there are foreign elements involved. It is thus of fundamental importance to determine your domicile and it may not necessarily be your place of residence.

Domicile is the place that is acquired at birth from the father, rather than the place of birth. 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.

Generally speaking, the following rules apply in most Common Law jurisdictions:

“Personal Property” / “Movable Property”

(e.g. money, shares, personal belongings) are governed by the law of the place of domicile as at the time of death. You will need a Will made at your place of domicile. 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. A new Will is required at your new place of domicile should your permanent home change.

“Real Property” / “Immovable Property”

(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 properties. Each Will should be drafted as a separate document and be governed by the laws of the jurisdiction of the corresponding real property.

2. Executor(s)

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

You can appoint up to four executor(s). 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 the executor may not survive you or may die at the same time (see “Common Disaster Clause” below).

3. List of Estate Assets, Liabilities and Beneficiaries

In making your Will, you should first make a list of (i) beneficiaries you would like to distribute to, and (ii) all valuable assets and liabilities under your estate.

Beneficiaries

You will need to list as many details of your beneficiaries (spouse, adult children, minor children, relatives, friends, third parties, charities) as possible in order to properly identify them:

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

Assets

You should list all your valuable assets, including detailed information about the following:

• Real properties
• Savings (bank accounts, savings accounts, Certificate of Deposits, money markets)
• Investments (stocks, bonds, mutual funds, Certificates of Deposit)
• Pension/ retirement accounts (retirement plans) 
• Life insurance policies and annuities
• Business ownership
• Cars, boats, planes and other vehicles
• Horses and other animals
• Any valuable personal properties (family heirlooms)

Liabilities

You should also keep records of amounts of all liabilities, including home mortgages, personal loans, vehicle financing, student loans, business loans, and credit card accounts. 

4. 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. 

5. 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 be sold, with the proceeds forming part of the cash residue.

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 the relevant assets properly on behalf of this 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. Guardianship of Minor Children

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.

8. Funeral Arrangements

Traditionally, declarations for funeral arrangements are included in the Will. They will typically be honoured by Executor(s) and family members. However, if the Will cannot be located immediately, these wishes may be overlooked. 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.

9. 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 (e.g. 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.

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 legal regulations. This may result in an undesirable consequence where the family of the younger of the deceased couple is unfairly distributed most of the couple’s assets.

10. Persons with a Disability

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

Once you have considered these 10 issues, you can ask a lawyer to draft your Will, or you can also try to do it yourself. Below is a Will kit with four most common will sample formats for you to follow:

Will Kit - 4 Most Common Will Sample Formats

For more on how to write a Will, please go to:

How to make Will and Testament? 9 Steps to Get Started

Frequently Asked Questions (FAQ) 

1. What makes a Valid Will?

A Will is valid so long as:

1. It clearly states your intention in the distribution of your estates;

2. You sign and date the Will in front of two independent witnesses (both of whom are present at the same time) who are not beneficiaries under the Will; and

3. You have the mental capacity and are of sound mind when making the Will. You are not under any undue influence or duress.

2. What are the implications of failing to identify clearly who the beneficiaries are?

Failing to identify clearly who the beneficiaries are is likely to create complications. If no clear beneficiary can be found, intestate succession will kick into place. This is where a court distributes one’s property to his or her closest

relatives[1]. There is a specific order of which next-in-kin can inherit the estate, and varies from jurisdiction to jurisdiction. 

3. What difficulties arise if the beneficiary of an estate is a minor?

Since minors do not have the legal capacity to control their assets (which includes their inheritance), one significant difficulty is that the probate court will have to nominate a conservator to be in control of the inheritance money until the beneficiary is of age. During this period, any use of the intended beneficiary’s funds will require authorisation and scrutiny by the court. The accumulation of administrative expenses, annual accountancy work done by the conservator, and court supervision over the minor’s assets often result in a reduction of the minor’s inheritance by the time they are old enough to inherit it. 

4. What are the consequences of a poorly drafted common disaster clause? 

Again, a poorly drafted clause leaves room for confusion and conflicting interpretation. Ben Michael, an Attorney at Michael & Associates emphasises the importance of a common disaster clause - it is created to prevent an estate from passing onto a beneficiary who dies not long after the creator of the will. Thus if the clause is poorly drafted, for example, if a backup beneficiary is not mentioned, then we go right back to square one, without proper direction[2]. The creator of the will’s wishes cannot be properly adhered to. 

[1] Mark Sadaka,Founder at Sadaka Law

[2] Mark Sadaka,Founder at Sadaka Law

Please note that this is just a general summary of the position under common law and does not constitute legal advice. As the laws of each jurisdiction may be different, you may want to speak to your lawyer.