Make a will

Published: Sunday | June 14, 2009


Question: I am a 38-year-old male, married, and the father of two. I am the sole owner of my house. I have written down how I want my assets to be distributed after I die and my wife is fully aware of my wishes.

I am not confident that everything is in order. I want to make sure that when I die, my assets will go to my beloved family in the exact way I have determined. What do I need to do to ensure my wishes are carried out?

- Frank

PFA: It takes almost a full lifetime to create and grow an estate, so it is important to transfer it in a way that meets your objectives. A will is an effective tool to do so.

Estate planning is an important part of personal financial planning.

It is concerned with creating, growing and transferring your estate, which is the total of your assets and liabilities, especially at death. A good estate plan ensures that your estate is distributed to the people, institutions and causes of your choice at minimum cost, and in a timely way.

Although there are several estate planning tools, I will focus on the will today. It is the written expression of a person's fixed and final intentions to dispose of property at death. Property may be real or personal.

Real property is immovable, such as real estate. Personal property is moveable, such as bank deposits, household goods and bonds.

Your will should state that it is your last and should revoke all previous wills. Your beneficiaries should be named and their gift clearly spelled out. The beneficiary mentioned first in the will does not have any special place or claim over the others by virtue of that.

The executor, the person or persons who, acting as your representative, will carry out your wishes as expressed in your will, should be clearly identified in the will.

As the testator, you should sign the will in the presence of two persons, both of whom should sign as witnesses. Your spouse and any person named as a beneficiary are not qualified to be witnesses. The will should be dated.

Include a residual clause to take account of any property of yours that is not named in the will. It may also include a clause naming a guardian for your children who are minors, specify compensation for the executor, or state how assets in the estate may be administered or invested, among others.

Your will becomes effective only after your death and effectively becomes a public document after it has been probated or proven in court.

For the will to be valid, the testator, or testatrix in the case of a woman, must be at least 18 years old, of sound mind, and must have made the will without "undue influence".

A will may be made on a pre-printed form available in book stores and pharmacies, or may be prepared by an attorney-at-law. Some persons do prepare their wills by typing them or having others do so for them; others prepare a holograph will, one that is written entirely in their own handwriting and signed.

Making a will is so serious a matter that it is advisable to consult an attorney-at-law who deals in such matters to avoid complications in the future.

If you die without making a will or if the one you made is invalid, you will be considered as having died intestate. In such a case, the law prescribes how your assets are to be distributed, which may be contrary to what you would have wanted.

Dying intestate makes it necessary to apply to the courts for Letters of Administration, a process that may be time-consuming and costly, not to mention the tensions that may develop or intensify among family members.

If your circumstances change materially - say you acquire more assets or have more children - you are advised to make a new will. Put it in a safe place and advise a key family member about its location.

Make sure the executor agrees before making that very important and time-consuming appointment. It is best to appoint a corporate executor if your estate is complicated or if you have reason to believe the settling of it will be contentious.

It is prudent to make provision for the smooth and prompt settlement of your estate. As not all beneficiaries will have the means to do so, resources may be made available through a life-insurance policy.

I will discuss other estate planning tools in another column. Go beyond writing down your wishes. Make a will.

Oran A. Hall, the principal author of The Handbook of Personal Financial Planning, offers free advice on personal finance. Email: finviser.jm@gmail.com.