11 Jan 2023
15 Nov 2022
Making a Will is one of the most important financial decisions in your life (for you and your beneficiaries). Yet most people avoid writing one and leave things to the laws of intestacy, leading to potentially unexpected outcomes. Applying for administration without a Will is a cumbersome process, and distribution under the laws of intestacy may result in an “unfair” situation, leading to family disputes and litigations.
Fortunately, all these issues could be avoided by making a Will. A Will is a legal document that sets out how a person's assets are to be distributed after his or her death. A Will can ensure that your designated family or friends inherit your estate. For entrepreneurs, a Will can help with a smooth legal transition of the business. For married couples with family, a Will can be used to appoint a trusted legal guardian for children.
So how to get started on writing wills? Here are the 9 steps to follow:
For most people, it is simple, you need to make a Will at the place where you live. For example, if you are living in New York, you should have a Will under New York law. For global citizens who live in different places around the world, you need to find out what your place of domicile is. Domicile is not necessarily your place of residence right now, but where you intend to make it your permanent home. Your personal properties will be distributed under the law of your place of domicile.
If you have properties worldwide, it is also good to have a separate will in each jurisdiction where you own real estate. Under common law, succession of real property is governed by the laws of the place where the property is located.
Most people know that they will need to make a list of properties under the Will, but it is also helpful to make a list of liabilities as well. This will help your executor a lot in the future in identifying the assets and liabilities under your estate.
You should list all your valuable assets, including detailed information about the following:
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.
After making a list of assets and liabilities, you will need to decide on how and whom to distribute your assets. In addition to the first name and last name, please include other details such as relationship with you, ID or beneficiary address to identify the beneficiary.
Do you want to distribute them equally between your loved ones? This may keep things simple when you are dealing with money but may create issues when dealing with real properties or businesses. Different people may have different views on how to deal with these properties and joint ownership are never easy.
What about giving different people different properties? This may work but since some properties are worth more than others, distributions are never completely fair and equal. This may also lead to conflicts and family disputes. If the property is still under a mortgage, you will need to ensure that you are giving it to someone who has the ability to service the loan, otherwise, the property may be foreclosed by the bank.
The other thing to note is if you leave your spouse and children out of your will, you will need to give good reasons to avoid litigations. In most jurisdictions, there are laws to leave your dependents with something even if they are left out of the Will. You can also pick contingent beneficiaries (usually charities) to take the remainder of the estate in case your chosen beneficiaries do not survive you.
You should name an executor you trust to administer your estate. The executor is responsible for the application of probate, paying off debts and taxes and the distribution of your estate. It is not necessary for the executor to have any professional training since the executor can always get a lawyer or accountant to help. More importantly, it should be someone whom you trust to carry out the terms of the Will fairly. The executor can also be the beneficiary at the same time.
You may choose to appoint multiple executors instead of one (maximum of 4). You can decide for the executors to act jointly (i.e. everyone must agree), severally (i.e. everyone can act independently) or in the order of priority (i.e. alternate executor will be appointed only if the primary executor refuses or is unable to act). Instead of individuals, you may also consider appointing a trust corporation to act as executor(s).
It is better to talk to your executor(s) in advance before appointing them to ensure that they are willing to accept the appointment. 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. You may want to include a backup executor in this situation.
If a beneficiary of an estate is a minor (under the age of 18), the executor will hold the minor’s share on trust on behalf of the minor. It is possible to specify an inheritance age later than 18, whenever you think the minor will be mature enough to manage the inheritance.
In addition, you should appoint a guardian you trust if you have any minor children. The guardian may or may not be the executor. Please ensure that the proposed guardian is properly consulted before such an appointment. Please note that the guardian cannot displace the rights of a surviving legal parent and it may be up to the court to issue a mandate in the best interest of the children.
You can provide other instructions in your Will, such as funerary arrangements, burial or cremation, religious ceremony etc. They will be honoured by the executor(s) and family members where possible. However, if the Will is discovered too late, your wishes for funerary arrangements may remain unfulfilled. Therefore, it is of vital importance that you let your executor(s) know of the existence and location of the Will.
If you have substantial assets, you may want to consult a lawyer for legal advice in drafting a Will. For many people, a lawyer may not be accessible or affordable. If you want to save time and legal fees, you can choose to write your own will (particularly if your family situation is straightforward).
A Will does not need to be legalistic, on any special paper, or signed and sealed by a lawyer.
A Will is valid so long as:
If you choose to make your own Will, here are four of the most common Will templates for you to choose from:
When to Use
Last Will and Testament Married Couple with Children
Last Will and Testament made by an individual with a spouse and children. Give everything to the spouse first, but if a spouse died first, give all to children in equal share.
Last Will and Testament Single 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.
Last Will and Testament Married Couple with No Children
Last Will and Testament made by an individual with a spouse but no children. Give everything to a spouse but if a spouse died first, give everything to a designated charity / in accordance with the laws of intestacy.
Last Will and Testament with Single with No Spouse and No Children
Last Will and Testament made by an individual with 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.
You will need to sign and date the Will in front of two independent witnesses who are not beneficiaries. The witnesses should be at least 18 years of age and preferably young and healthy since they may be asked to testify should any future dispute arises.
Ideally, you should keep your Will in a safe place (e.g. a safe deposit box or a file cabinet) and let your loved ones know of the existence and the location of the original. The court will generally only accept original, undamaged Wills. If your Will is kept in a locked box, please ensure that your executor(s) will have access to the Will so that your wishes can be fulfilled without delay.
Please note that the information contained in this article does not constitute legal advice. As the laws of each jurisdiction may be different, you may want to speak to your lawyer.
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