A will can act as a financial safety net that helps preserve the value of your assets, minimises wait times for disbursement, and helps ensure the legacy you envisioned for your family is realised.
When Mrs Tucker*, a St Catherine resident, lost both parents, neither of them left a will. Although the prospects of sharing her parent’s possessions among her siblings and other relatives was not contentious, she was nonetheless left with a complicated situation.
Among the significant assets she acquired were a house, motorcar and significant sums in a savings account with a local commercial bank. Unfortunately, she has been unable to immediately financially benefit from any of these assets and will have to wait for a long time for the Administrator General to allocate the inheritance.
Mrs Tucker related that despite the inconvenience that she has so far experienced as a result of her parents not leaving a will, she herself has not gotten around to making one.
“I keep saying that I’ll do it tomorrow, but tomorrow never comes. That’s what has been happening to me,” she explained.
Tasha Manley, General Legal Counsel, The Jamaica National Group Limited, pointed out that making a will is not merely an important aspect of estate planning, but is also a great strategy for financial planning. It provides a security blanket for beneficiaries and ensures that your wishes are carried out precisely.
“In Jamaica, the refusal or hesitation to make a will is largely linked to superstition. Some persons believe that if they make a will it will bring bad luck and hasten their deaths. For others, they do not appreciate the importance of the will and are not aware of the implications of dying intestate (without leaving a will), while some are simply unsure how to proceed,” she explained.
Ms Manley underscored that making a will is much easier than one thinks.
“You can start by simply writing down everything you own in a note book or on a piece of paper and identify who you would want to have them,” she said.
“Never believe that your belongings are too little or too small in value to be gifted in a will. You will be surprised what personal items can create a rift between relatives when you are deceased.”
She emphasised as a starter, that a person making a will must be 18 years or older, be of sound mind and must make the will free from fraud, force or duress. That is, the person should willingly prepare the will without any threat or undue influence from another.
The JN general legal consul outlined the following guidelines when making a will.
- A will must be in writing, whether handwritten, typewritten or computer generated.
- Express how you wish to distribute your property in simple language. Avoid the use of technical legal phrases.
- Describe fully your assets so that they are easily identified. Instead of saying my bank account, for instance, you should describe it as my savings account held at which financial institution and indicate the account number.
- Identify an executor, who must be named in the will. This person will be responsible to oversee the probate of the will, that is, the administration of the deceased’s estate so that the property is distributed as inheritance as outlined. Ensure that the person is willing to serve in this capacity.
- Name a guardian for your children if they are minors, and a trustee who will serve as a custodian to manage property left for your children.
- Sign your name at the end of the will in the presence of at least two witnesses, both being present at the same time while you are signing.
- Thereafter, the witnesses must sign the will in the presence of the testator (the person making the will) though not necessarily in each other’s presence. Failure to follow this procedure makes the will invalid.
Ms Manley pointed out that a will is revoked by subsequent marriage.
“If you get married after writing your will, then it is crucial that you prepare and execute a new will. You are free to change your will at any time. A later will with a revocation clause will revoke the previous will,” she advised. Ms Manley further pointed out that when a person who is unmarried or childless dies, the assets are distributed based on the Table of Distribution in the Intestates Estates and Property Charges Act.
She further stated that where property is jointly held, that is as joint tenants with equal indivisible share, upon death, the ownership of the property passes to the remaining owner(s) who are alive. It does not pass under the terms of your will. As part of your financial planning strategy you will have to consider severing the tenancy in order to give your “share” to the beneficiary of your choosing.
“However, if you own your property with someone as tenants in common, it means that you own a specific share of the property so that, upon death, the share of the property that you own can be included in your will and go to the beneficiaries you choose.”
“Once you have drafted the will, don’t just place it under the mattress, in a drawer or in your vault. A will must be taken out and reviewed regularly, maybe once every year, to ensure it is still relevant to your circumstances. For example, if you have remarried, had more children or grandchildren, your named executors have died or the relevant laws have changed, you definitely need a new will,” said Ms Manley.
Implications of dying without making a will
- The estate administration tends to be more expensive due to legal costs.
- It creates uncertainty for your personal representative, who is appointed by the court, as to the extent of your assets because they don’t know what you have if it’s not documented; so some of your assets may not be administered and therefore will not go to your loved ones.
- Individuals may get a benefit that you did not intend for them to get and others who you intended to benefit may not receive that benefit.
- If you have children below the age of 18, the Administrator-General will assume responsibility to distribute your assets which can be lengthier than if there was a probate for the distribution of the assets.
Estate Planning and Financial Planning go hand in hand. Both involve forecasting and strategising for a desired outcome in the future.
“Making a will is important because it ensures that your family’s financial well-being is taken care of even if you are not around,” Ms Manley emphasised.
*Name changed to protect her identity.
