Securing Your Future: Why a Will is More important than Ever during a Pandemic

Most of us do not have a will. This is problematic, particularly in a time like now where the COVID-19 pandemic is in full force, with more and more unpredictable deaths than ever. Whilst you may be too reluctant to write a will, having a last will in place can help minimise stress, financial issues, life or death decisions and disputes which your loved ones may face in times of a pandemic. A will is a legal document that sets out and coordinates how your assets are to be distributed after your passing. Wills can also enable you to appoint guardians for your minor children if you are a parent.

 

It is therefore important to be prepared when you have a sound mind so that your loved ones are not left with the triple whammy of dealing with death, paying for medical and funerary expenses, and being without any financial support to face the worst economic crisis since the Great Depression. 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. Informs and guides the individuals who will be receiving the assets

 

If you don’t have a will, the law of intestacy will apply. The presumption under the law is that your assets will go to your immediate family when you die, or if they are not available, the next-of-kin, who can potentially be your adult children or a distant relative. Part of your estate may even be spent on heirs tracing service. If you have no relatives, the state will be the ultimate beneficiary.

 

With a will, you can decide to who to leave your assets (including money, real property, and personal property). 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 wouldn't want your loved ones to go empty-handed whilst leaving your entire life savings to your overseas third cousin who you met once when you were two.

 

2. Less Stress and Disputes for Your Beneficiaries

 

Having a well-drafted will make 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 due to no beneficiary designations.

 

Particularly considering the COVID-19 pandemic, you want to make it as quick and easy for your heirs to get the financial support they need if you pass away, rather than increasing their burdens.

 

3. Appoint Executor(s) You Trust 

 

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

 

If you don’t appoint an executor through your will, any next-of-kin(s) may apply to become an administrator(s) of your estate. Thus, by having a will, you can avoid having uninvited relatives applying to court and competing to become an administrator of your estate.  

 

Considering the uncertainties brought about by the pandemic, you may want to appoint more than one executor in case he/she passes before you.

 

Up to four executor(s) may be appointed. If appointed, they must do everything concerning 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).

 

Before appointing them, you should consult your executor(s) first to determine whether he or she is willing to accept this role. If you plan for your spouse to be your only executor, that is fine – but you should consider the possibility that your 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 access your assets.

 

This may be an issue given that many courts have been shut down during the pandemic. Court administration often takes months and results in family members not having access to vital cash flow (particularly due to the additional 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 immediately without going 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. Even if a grant of probate is required, the probate process is still quicker than court administration.

 

However, if the will cannot be located immediately, there may be delays in the registration of probate. As such, we urge you to let your executor(s) and family members know of the existence and location of the will. Open communication is key.

 

5. If you are a parent, you can appoint guardians for your child(ren)

 

Having a will is especially important if you have a minor child(ren) and want to appoint a trusted legal guardian to assume responsibility for them before they reach adulthood. Make sure to 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 consulted before the appointment and that you provide sufficient contact details of the guardian. Note that the guardian cannot displace the rights of a surviving legal parent.

 

6. You can avoid standard distribution under Laws of Intestacy

 

If you do not have a will, everything you own will be distributed under the laws of intestacy under common law, which may not necessarily lead to the outcome you want. For example, if you have a spouse but no children, your estate may be split between your spouse and your other family members.

 

If no provision is made in a will and a common disaster occurs, making it uncertain as to which spouse survives the other, then the younger one 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 under the law. 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.

 

You can avoid these unintended consequences and achieve peace of mind by drafting a will and including a “Common Disaster Clause”. This clause is an especially important one if you choose to appoint your spouse as your Executor.

 

A common disaster clause covers the unfortunate circumstance in which people die together or within a short time of each other (e.g., not only concerning Coronavirus but in the event of a plane crash, natural disaster, or terrorist attack).  A common disaster clause would consider the couple to have died together and provide special arrangements for the distribution of assets and guardianship of the children.

 

7. You can provide funerary (and any other) instructions  

 

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

 

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

 

8. Stamp Duties 

 

Without a will, real properties will be split equally amongst the beneficiaries. This may cause undue complications in the management of properties. Transferring interests in the 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 several beneficiaries equally interested in one or more properties only leads to disagreements and disputes (e.g. one party would like to sell but another party does not want to sell). This should be avoided at all costs.

 

9. Inheritance Tax

 

Having a will in force can 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 to understand jurisdictional requirements or things to consider.

 

 

Can I write my own will without help from a lawyer/attorney?

 

Whilst the comments above are generic to most common law jurisdictions, we still recommend you consult your local lawyer for legal advice `to see if any jurisdiction-specific rules would apply in drafting a will. We also understand, however, that lawyers may not be accessible during a pandemic.

 

If you want to save time and legal fees, you can choose to write your own will (particularly if your family situation is straightforward). It does not need to be ‘legal’; additionally, it can be written on any piece of paper and need not be signed and sealed by a lawyer. A will is a valid will if:

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.

If you want to learn more about wills in general and the advantages that come with them, you can check out our dedicated blog post here: https://docpro.com/blog9/advantages-will

 

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

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

 

 

Issues to Consider when Preparing Your Will in a Pandemic

 

If you do choose to create your own will, rather than worrying about trivial issues like the language or format, you should consider the following key issues:

 

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 is a tad sexist). When you reach the age of majority and have settled in another jurisdiction to make it your permanent home, your place of domicile may change.

 

Even though the pandemic makes travel difficult, 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 remains 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. The succession of your personal property/movable properties (e.g., money, shares, personal belongings) is governed by the law of the place of domicile as at the time of death, wherever they are located.

 

To sum it up – 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. Given the travel ban, you don't need to travel to the respective country to prepare the will there, however, you should check if there are any local requirements you need to comply with before preparing the will in that 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 dies. 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 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. The answer is yes. Not only is it legal to do so, but it is also strongly recommended for a beneficiary with substantial interests in the estate to be an executor to protect his/her interests unless the beneficiary cannot do so (e.g. being a minor, too old, uneducated, etc.).

 

As 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 following the Will

 

4. List of Estate Assets and Liabilities

 

To help your executor(s) discharge their duty, you should also make a list of all the 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.

  • Note that 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 the 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.

 

You will need to 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 at an age later than 18, such as 21 or 25, as it would be more likely at that stage 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. A person with a Disability

 

When making a will, consider special trust provisions for a beneficiary who is disabled. An example of this is appointing a trustee or a guardian to monitor the assets inherited by the disabled person.

 

 

How can DocPro help?

 

If you choose to create your own will, you can simply start with one of DocPro’s four forms of last will. Using our customisable template will ensure that the will is drafted to a high standard:

 

Documents	When to Use	Web Links
Last Will and Testament with Spouse and Children	Last Will and Testament made by an individual with a spouse and children. Give everything to the spouse first, but if the spouse died first, give all to the 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 a 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 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.	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 their local 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; for real properties, the Grant of Probate should be obtained from the jurisdiction in which the property is located.

 

The timing and procedures for the Grant of Probate vary from jurisdiction to jurisdiction. You must check the websites of the relevant Probate Registries (listed below) to find out the process, the forms to be filled and the 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

 

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.