No one wants to think about the possibility of death – that is, their own death. But it’s important to make sure your family and loved ones are taken care of if something happens to you. If you don’t have a will, now is the time to seriously think about it. If you have made a will and want to make changes, do so now because it will be too late to make those changes if something were to happen to you.
Always make sure your wishes are properly documented, as the court will consider your will as the final proof of your wishes regarding your property upon your death. Remember that if you don’t have a written will, the courts will assess what will happen to your property and order the disposal of your property in whatever way they think is best. The problem is that this may not be what you want; so be sure to seriously consider writing a will at the earliest.
What is a will?
A will is a document containing your instructions and wishes regarding the distribution of your property and assets after your death. Anyone, regardless of age, should seriously consider a will at the earliest. A will should not be reserved for people who have reached an age when death is near. People die at any age and a will is necessary especially if you have assets and possessions to allocate to those you wish to benefit from.
A will is the expression of a person’s will concerning the distribution of his property. This is a written declaration, signed in compliance with the various formalities provided for by law. This is a legal document containing the names of the people you wish to benefit from, as well as the details of your assets on the date of your death. The people you want to benefit from are called beneficiaries.
Your property or possessions will include anything you own, such as your home, land, vehicles, bank accounts, insurance policy benefits, furniture, boat, investments such as stocks, personal jewelry, works of art, etc. A will is the only way to ensure that your assets will be distributed according to your wishes after your death.
What is a valid will?
A valid will is a will that is accepted by the court and given effect by the court granting what is called probate. Probate is the court’s approval or acceptance of how your assets are to be treated.
A valid will must have the following characteristics:
- It should be written – handwritten, typed or printed.
- It should be signed with your signature at the end of the document.
- It must be certified by at least two other people present at the time of signing. They must acknowledge that they were present and must sign the will as witnesses in your presence. They do not need to be together at the time of signing.
If your will is not written this way, the court may not accept it and it will be unenforceable (the courts will not enforce it). The court has the discretion to grant probate (probate is confirmation that the will is valid and accepted) and your assets could be disposed of as if you had no will at all. When the court exercises this discretion, it must be satisfied that the document clearly states how you want your assets to be divided or distributed.
About writing a will
Most people know that they must write a will before they die. Unfortunately, the majority of people do not have a will. They do not think of making a will until they are over 50 years old.
Writing a will doesn’t have to be expensive. Once you do, you can rest easy knowing that your wishes will be followed after you die. Most wills can be written very simply. Others are more complex and involve more people, large assets and cash. These wills should be discussed with lawyers who specialize in this area.
Although a will is not essential if you don’t have much (e.g. property to distribute), you may have personal items such as jewellery, manuscripts or trophies that you wish to leave to people specific. Having a will clarifies this and saves all arguments later.
If your estate, possessions and assets are valuable, you should ensure that a will clearly states your wishes and instructions. It may be inconvenient for you to write a will while you are alive, but it could avoid arguments and fights between your beneficiaries.
Why make a will?
If a person dies without having made a will, the rules of the law will apply. If you die without a will, the term is; you died “intestate”. If you die without a will, the court decides how things are done, how your assets are distributed and who would benefit. It may not be according to your wishes, so dying intestate is not a good position as far as your beneficiaries are concerned.
Because most of us don’t know when we’re going to die, we should approach writing a will as if we don’t have many days left on this earth. This is important because it avoids arguments between family members and beneficiaries after your death.
Here are some examples of what could happen if you die by will. You may not be particularly happy with some of them.
- If you die without a spouse or children, but your parents survive you, your parents will generally receive all the assets of your estate.
- If you die and are survived by a spouse, your entire estate will generally pass to your spouse.
- If you die and are survived by a spouse and children, the estate will most likely be divided between your spouse and children, as determined by the courts. Dividing your estate between your spouse and children can cause problems for your spouse, who may have to sell a family home in order to pay the shares to the children.
- If you die without a spouse, children, or parents, but are survived by siblings, your estate will be divided equally among those siblings.
There are a number of reasons why you should write a will as soon as you can.
- To protect your loved ones.
- Writing a will is one of the only ways to be sure that the work and the heritage of a lifetime, accumulated over the years, will be bequeathed to the people you want. It ensures the safety of your family and the people for whom you are responsible. Most of your life would be spent building up your assets. It can be a house, a car, insurance policies and other investments, etc. You will want these assets to go to the people you choose rather than someone else.
- Smooth asset transfer.
- Having a will allows you to pass on your assets smoothly when you die. You should prepare a detailed list of your assets, as well as your personal goals before putting your plan in place. Your ultimate plan will involve investment advice and planning, so that there is a provision for the orderly transfer of your assets.
- To ensure the future of your children.
- If you have children (under adulthood), you can appoint guardians and arrange for their upkeep and education.
- For a second marriage.
- If you are currently in your second marriage, you need a will to protect your new family members. A marriage generally invalidates any wills made before the date of the marriage, so unless you have a new will that includes a reference to your new family, your new family may not get the protection you want.
- De facto relationship.
If you die without a will, your partner could lose property and memories that are rightfully theirs. A common-law partner is not automatically entitled to your estate if you die without a will. Interestingly, a divorced ex-spouse can still inherit your estate because a divorce does not automatically nullify a will.