What is a Will?

A Will is a legal document that describes your wishes regarding the distribution of your assets, property and possessions. Your property and possessions include everything you own: your home, land, money in bank accounts, shares, cars, jewellery, furniture, art, etc. Making a Will is the only way you can ensure your assets will be distributed in the way you want after you die.

Most importantly, a Will can also be used to address other important issues such as appointing a custodian and guardian for your minor children upon your death. You may also express your wishes as to how you wish to be buried, but these wishes are not legally binding upon the executor.     

Why is it important to have a Will?

A will is the most critical, but often neglected part of a sound estate plan. The rewards from preparing a will are many, and tremendously valuable but many of us put it off.  You can avoid a lot of these potential problems if you simply plan ahead.

I will mention below three compelling reasons why you should have a Will:

REASON ONE

When you have your first child, it is important to have a will in place so they are properly provided for and looked after.You should have control over who looks after your minor children in the event that either or both parents die or cannot perform the role of parent/guardian.  

Custodian for your minor children

By Will, you can appoint a custodian for your minor children of your choice. Any parent knows how important it is to make sure that your children are in the hands of someone you want. Although this appointment is only valid for ninety days from the date of death, but an appointment can be of great benefit as upon the death of a parent, for the initial ninety day period, there would be no argument as to who should look after the children and where the children will reside. The final decision as to the custodian which will be made by the court will be easier, and probably less contested if the will states the parent’s preference.

If there is no Will, the people that the Court chooses to appoint for these roles may not be the ones that you would have otherwise chosen.

Guardian for your minor’s property

If you do not have a Will but have minor beneficiaries, the Court will appoint the Office of the Public Guardian and Trustee to be the Trustee for your minor children’s property. PGT must give the children their share outright when they reach the age of 18 years. Some parents do not feel that a child is responsible and mature enough to manage large amount of money. Therefore by having a Will, a parent can decide at what age the child can take control of his or her bequest.

REASON TWO

Your wishes may not be observed if you die without a Will.

If you die without a Will, the law says that you have died “intestate,” which means that you left no instructions as to how your property is to be divided and distributed.

You will have no control over who will look after your property and your minor children after you die as you do not have an executor. Therefore, the Court will appoint someone as an administrator to look after your estate. The Court will also appoint a guardian if you have left any minor children.

A lot of people think that the Government takes their assets if they die without a Will. This can happen only in exceptional cases where there are no close relatives or persons in a family relationship who are living at the date of death.

A family business or heirloom may not be able to stay in your family, and it may be necessary to liquidate the assets. When there is something of significant value like a business, it is so important to plan ahead to avoid potential conflicts. Ultimately, without a will, you are unable to exclude or include beneficiaries. You must depend on the law and the government to decide the economic fate of your family and loved ones.

REASON THREE

Some assets may not form part of your estate.

It is important to confirm the correct ownership of particular assets so that your wishes can be achieved. Some people are unaware that some assets will not form part of their estate when they die. For example, life insurance may not be distributed in a Will.

If an asset is owned by more than one person, whether it forms part of your estate will depend on how it is owned. There are two ways people can legally own assets:

• Jointly – This is the most common way of owning property and you would be a ‘joint tenant’ with the other person; or

• Tenants in common’ – This doesn’t mean that you are tenants; rather it means that you each own a certain percentage of the property (usually 50%) and you can deal with your percentage however you want to.

If you own your home as a joint tenant, then when you die, the home automatically passes to your other joint owner. It makes no difference whether you have a Will or not. But if you own your home as tenants in common, you can leave your percentage of your house to whoever you want in your Will.

There have been many cases where homemade Wills were either unclear, not properly drawn up or caused an unwanted tax liability. Many of these cases end up in court and carry on for years, causing distress and hardship to the family of the deceased.  Everyone’s situation is different and may be more or less complicated as given in this article. It is strongly recommended that you seek a lawyer’s advice to have your Will properly drafted by a lawyer if you want to have control over who your beneficiaries are when you pass away.