If you die without a will, complete strangers will decide how to split up your estate and raise your children if they are minors. Is this what you want? In lieu of a will the court takes up the business of sharing out your estate. Don’t let this happen to you. If you have not written your will, today is the day to do it.
Nobody likes to think about death – especially their own – yet this is an unavoidable eventuality. Most people don’t think about creating wills until they hit middle age, or when they are on their deathbed. But you can’t always see death coming, and it is not good planning to wait this late to do things you should have done earlier. In addition to the emotional trauma, dying without a will can wreak financial havoc to your family. It is time you started thinking about planning your estate. The time to write your will is now, when you are able to think rationally, and not when death beckons.
If you die without a will the court will decide who will inherit your property, and will be guided, to a large extent, on claims filed in court. The first right to inherit property goes to a spouse and children, followed by other relatives. If you have no family, your property goes to the state. And unless you appoint a guardian for your minor children in a legally executed will, the court will determine their future.
Making arrangements for your final days and beyond is not just about helping your family through difficult times. It also let’s you designate representatives to make decisions about your send-off and where you will be buried, withdraw money from your account(s) to pay your bills, and leave your legacy in exactly the way you want.
You can make things a little easier for your family and friends by planning ahead and creating a will. A will is for anyone who wants to distribute their money and possessions (however little) according to some plan. All that you own, including physical property and investments, is known as your estate. An estate plan is a strategy for passing your money and property on in an orderly manner to your heirs.
Wills are extremely important and it’s a pity many Kenyans die intestate (without a will) and leave their families fighting endless battles in court. A will gives clear, legally binding instructions about what you want done with your assets. Simply telling your relatives what you want to happen after you die isn’t good enough. You need to write down those instructions in a legally binding manner – in a will.
If you die without a valid will or a living trust, the laws of your country determine what happens to your property. Generally, your assets will go to your spouse and children or other closest heirs, which may not be what you intended, and, besides, other people can come and claim part of your estate. To have your wishes respected, you have to create a will.
Depending on your situation, you may need something more than just a simple will. You could choose any of the flowing:
A will. Also called a last will and testament, it lets you decide who inherits your property including land, money and personal possessions. This is also where you designate who you want to be the executor of your will or the guardian of your children should they be minors.
A living will. This lets you tell your family what to do if you are incapacitated and terminally ill. This is the kind of document your need if you don’t want, for example, to be kept alive on a life support machine. You may also want to draw up a power of attorney, which gives another person the legal authority to act on your behalf if you are incapacitated.
A living trust. Also known as revocable trust, it can help your survivors avoid probate, the court process used to pay your debts and distribute your property to the people who inherit it, as expressed in your will. The wealthier you are, the more likely you can benefit by having a trust. But you should note that even if you leave a trust you will still need a will.
Possessions owned solely in your name go through probate. But if you transfer titles of those possessions to a revocable living trust, naming yourself as trustee, you retain control over the assets during your lifetime and the property inside the trust goes directly to your heirs upon your death. This means there will not be courts or lawyers to haggle over distribution of your wealth. Living trusts can be a valuable tool for people who want to keep their affairs private, avoid a drawn-out probate or have a family member disinherited. It is more difficult to challenge a trust than a will.
Not everyone needs a living will or a living trust, but anyone who has accumulated property or other possessions in their lifetime should have will. A will is the best place to state your intentions of who should inherit certain family heirlooms, and how these should be passed on when their inheritors die. If you are married and have children only by your spouse, writing your will can be pretty simple. If your kids are minors, you may want to specify a legal guardian.
The need for a will increases significantly in more complex situations, for example, multiple marriages, multiple children by multiple partners, large families, and so on. You will reduce hardships and hurt feelings in the future if you are clear in your will about what you want to happen to your property and what you want to do for specific people.
Drawing up a will
The probate process allows your executor to settle your debts and distribute your property in accordance with your wishes. This is a court process and could tie up your estate for months and cost a lot of money in legal fees. But remember that some property such as life insurance death benefits pass directly to your named beneficiaries and property owned jointly with the right of survivorship – say a house or car – transfers automatically to the co-owner. You can also arrange for bank and other accounts to be transferable or payable on death to a person you choose.
Though you can draw up your own will, you are usually better off hiring a lawyer to do it for you, especially if you have complex finances or a complex family (several wives and children, mistresses with children or other dependants). A lawyer is basically the person that knows the rules that govern inheritance in this country. He will have the right wording on your will, which can stand the test in a court of law if it is contested.
Also remember making a will is not just writing down on a piece of paper what you would like to happen after you are gone. It’s about evaluating your estate, as meagre as it may be, and deciding what you want to happen to it after you die. It is also a time of reflection on how you would wish to leave your legacy, who is best suited amongst your heirs to take up the leadership role of your estate, and how to divide your wealth to ensure you don’t leave behind a family in battle. This system is easier when somebody who knows the laws is there to show you the way.
Many families get shattered when a document they produce as a will of their departed are challenged in court or not accepted by say, employers or banks. If you plan to make your will without the help of a lawyer, ensure it is legally binding and if you don’t understand the law, consult a lawyer, not to help you write it, but confirm that it will be acceptable when you are gone. For a will to be valid, it has to be properly drafted, signed and witnessed. A lawyer’s job is to make sure everything is done properly, even if you draft the will yourself. Don’t risk the future of those you love for the sake of saving a few shilling in legal fees. It is better to have properly executed documents and not need them, than to need them and not have them.
Working with a lawyer to create a will is fairy simple. Just call one up and say you are interested in planning your estate and that you need some help. He will probably sit you down for an interview or give you a series of forms to fill out. He will need you to declare all your wealth and if its land he will need to see valid titles. The more organised you are, the easier the process is. Once the lawyer has an idea of what you own and where you want it to go after you die, he will draw up the paperwork. Though most wills share certain features, the lawyer will customise it for your specific needs. For some people, there is more to estate planning than just creating a simple will, but for many, it really is this easy.
Once you have a will, keep it some place safe and accessible, like a safe-deposit box in a bank or with a lawyer, and let trusted family members know where it is. If your family can’t find your will, they can’t follow your wishes. Finally, remember to update your will when things change. For example, when you first draft a will, you might designate your parents and siblings as beneficiaries. If you get married, you will probably want to change that. And if you get divorced, you will want to change that again. Be sure to update these documents periodically to account for major events, such as the birth of a child. If you don’t, you could create the very mess you were trying to avoid in creating a will.
Excuses people make not to write a will
You’re not going to die soon. Everyone will die sooner or later so you better get prepared by writing a will.
You are too busy. You will always be busy but not too busy for the important things in your life. Your family is one. So, stop this excuse and make your will toady. You never know if you will live to see tomorrow. Being busy working so hard for your family, then leave them in a mess is an exercise in futility.
You can’t stand thinking about a future that does not include you. Be realistic. Your house and land will outlive you, your children most likely, your spouse maybe – so a future without you will happen someday. How do you want that future to be? Do you want all your life’s work to die with you? Do you want to leave behind a family in turmoil? What about your legacy?
Published in April 2012