Benjamin Franklin, one of the Founding Fathers of the United States, once remarked “in this world nothing can be said to be certain except death and taxes”. Therefore, while some have attempted to cheat both, the fact is that we will all die. It is worthwhile knowing that at least with respect to death the law gives you an opportunity to determine how our affairs are to be managed after we die. This opportunity is through the making of a will.
Q. What is a will?
A will is a written document in which you set out how your affairs should be handled after you die. This could range from how your business should be managed or your property distributed to which suit you want to be laid to rest in. Your property is anything you own or in which you have an ownership interest and includes land or personal possessions such as artwork, jewellery, bank accounts, insurance policies, household items etc. If you own it, you can will it.
The good thing about a will is that if you change your mind about who you want to give your property to, you can change or amend your will at any time during your lifetime. Further, having a will does not prevent you from disposing of any property you have during your lifetime. This is so because your will only takes effect from your death and therefore at any time before you die you are free to change your mind about what you want to do with your property.
Q. Why should I make a will?
Sometimes people think, after considering their individual circumstances, that they do not need a will. However, there are several benefits to having a will. For instance:-
(a) PERSONAL CHOICE: It allows you to determine who gets your property after you die and in what quantities. Without a will the law determines these questions and the result may not be what you would have wanted;
(b) WHO DO YOU TRUST: It gives you the opportunity to appoint a trusted and capable person as Executor/Executrix who can administer your estate, business and other concerns after you have passed on;
(c) CHILDREN: If you have minor children it allows you to appoint the person you want to take care of them if you are no longer around to do it;
(d) QUICK AND EASY: It could result in a smooth and more efficient administration of your estate thereby reducing the chances of disagreements or disputes between your beneficiaries and loved ones; and
(e) PEACE OF MIND: You may provide instructions and guidance to your friends and family about how you would want your affairs to be handled including Letters of Wishes to guide your Executor.
You should therefore never think that your circumstances disqualify you. You should seek legal advice if you are unsure.
Q. Can I prepare my own will?
Yes, you can prepare your own will. However, the preparation of a will is not something that should be undertaken lightly because there are certain formalities that must be complied with for your will to be valid. It is therefore advisable that you have your will prepared by someone with the requisite knowledge, expertise and understanding of numerous formalities to be observed. An invalid or an ambiguous or imprecise will may result in your not having a will at all.
Q. Are there any assets which will pass outside of my will?
As a general rule, assets such as life insurance policies with a named beneficiary, jointly held bank accounts and/or land held as joint tenants will pass outside of your will. These assets will pass directly to your named beneficiary or joint owner. In appropriate situations, this general rule may be displaced. You should therefore ensure that in making your will all your assets, including the ones you won jointly with others are disclosed so that an assessment can be made on whether you should take any further steps in relation to these assets.
Q. I already have a will, is there anything else I need to do?
You should keep your will up to date. It is good practice to review it a regular intervals and certainly after major life-changing events such as death, divorce, marriage or the birth of a child. In fact, your will is revoked by marriage. Regular review ensures that it accurately reflects your wishes.
On the next occasion we will focus on the roles and responsibilities of your Executor.
THE LAW & YOU is a public legal education column written fortnightly by KEITHLEY LAKE & ASSOCIATES, Attorneys-at-Law, The Law Building in the Valley (tel:264-497-2069). The views expressed herein are not, and are not intended to be and should not be taken as, a substitute for legal advice. Please send your comments and questions to thelawandyou@anguilla-attorney.com.
