will-writing

A WILL is a document which provides for the administration and distribution of what is owned by you, among people whom you desire to have a share or shares of your estate/assets after your death.  Essentially, a WILL is your expressed intention of what should be done with your property after your death.

It is advisable that professional legal advice be sought to ensure that formalities and legal requirements are followed.  If such formalities or any legal requirements are not complied with, your WILL may be invalid or ineffective and your estate can be distributed in accordance with the laws.

Since most of us die possessing property, most of us need a WILL.  As long as you are at least 21 years old and are of sound mind, you should consider having a WILL drawn up as soon as it is practicable as no one really knows what tomorrow holds.  You should review your estate occasionally and especially so after certain events such as marriage or divorce.

THE ADVANTAGES OF HAVING A WILL

A Will enables you (“testator”) to :

  1. distribute your estate/assets in specific proportions to people (“beneficiaries”) whom you wish to have a share of your estate/assets;
  2. distribute specific assets to specific beneficiaries;
  3. appoint a person or persons of your choice to administer your estate (“executor(s)”); and
  4. appoint a guardian or guardians for your infant children (if any). 

A WILL takes effect only upon your death.

Therefore, during your lifetime, you are free to dispose of your assets.  You should not be restricted in any way in the disposal of your assets just because those assets have been specified to be disposed of in accordance with your WILL.

PROPERTY TO BE DISTRIBUTED IN THE WILL 

Most of your property may be distributed by way of a WILL but the following property, for example, require special consideration :-

  1. properties held in joint tenancy;
  2. CPF monies where there had been a valid nomination;
  3. Monies/proceeds under insurance policies where there had been a valid nomination;
  4. Properties held on trust for the benefit of a third party.

THE DUTIES AND OBLIGATIONS OF AN EXECUTOR

The executors’ duties include but are not limited to the following:-

  • giving the proper notices to the proper parties;
  • collecting all your assets/property;
  • receiving claims against the estate;
  • paying taxes, debts, just claims and disputing others;
  • selling estate property to cover debts or to allow for distribution;
  • distributing the estate property according to your WILL. 

The person(s) so appointed as the executor(s) should be informed that they have been appointed as such and where the WILL is kept, although there is really no requirement to shown them the contents of the WILL.  And it is not necessary that the beneficiaries have knowledge of the existence of the WILL.

A WILL CAN BE CHANGED

A WILL can be changed by way of a Codicil (an addition) or by revoking the existing WILL and drawing up a new WILL.

You can change your WILL as many times as you wish.  However, changing a WILL by crossing out parts or adding words to it should never be attempted as otherwise the WILL may become ineffective or invalid.  It is advisable that legal advice be sought before any changes are made to your WILL.

A WILL is required to be updated or changed in the following circumstances :-

  1. when the testator marries or divorces (Marriage automatically revokes a WILL);
  2. when a beneficiary stated in the Will dies and there is no substitute beneficiary provided for;
  3. when the person(s) appointed as the executor(s) or guardian(s) die(s) or is/are no longer able to fulfill that role and no substitute executor(s) or guardian has been appointed;
  4. when there is a change of heart as to who the beneficiaries should be or what property is to be given to whom;
  5. when a beneficiary has changed his/her name;
  6. when there is a significant change in the composition of assets. 

If a person should die without a WILL, then the law will decide to whom the property of the deceased person should go to.  For instance, should a person leave behind a girlfriend or boyfriend or even a fiancée, these people will be left with nothing from the deceased person’s estate if the person had died without having a valid WILL drawn up.

The INTESTATE SUCCESSION ACT provides for the distribution of the estate of a person dying without a WILL as follows :-

Person passes away leaving behind Distribution
Spouse only, no children or parents All to spouse
Spouse and children Half to spouse and the other half to be divided equally amongst the children
Spouse and parents but no children Half to spouse and the other half to be divided equally between the parents
Parents only, no spouse All to parents equally
Siblings and their children only, no spouse, children or parents All to be shared equally amongst siblings and if they have already passed away, their respective children
Grandparents only, no spouse, children, parents or siblings All to be shared equally between the grandparents
Uncles and/or aunties only, no spouse, children, parents, siblings or grandparents All to be shared equally amongst the uncles and aunties
No spouse, children, parents, siblings, grandparents, uncles or aunties All to the government

Although making a WILL is a sobering experience it would make the loved ones of the demised person thankful for the thoughtfulness ahead of time.

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