Introduction
Whilst you can write your own will, to ensure validity and reduce the prospect of your will being challenged, it is prudent to seek guidance from a professional. ABIS Limited will ensure your will is legally valid, and properly structured.
Legally Binding Wills
A will must be signed by the testator (will maker) and be witnessed by at least two people.
Useful Terms
Testator
The person who makes a will is known as a ‘Testator’. Where a person dies without a will the estate is known as ‘Intestate’.
Executors
Executors are charged with carrying out the instructions and wishes contained within the will. The Executor is usually identified within a will. And is a testator’s trusted choice of person(s), as a range of important responsibilities are required to be undertaken by the executor. These include ensuring that all assets within the will are accounted for and thereafter correctly dealt with as outlined in the will. The executor must also ensure that all debts and taxes are paid prior to the distribution of the estate.
The executor is legally responsible for carrying out the wishes of the deceased as specified in the will and also acting in the best interest of the deceased.
Where there is no will or no executor appointed within a will a court of law may appoint an executor.
Guardians
A guardian is a person(s) appointed to legally look after a minor (person below the age of 18 years), or an adult(s) otherwise incapable of looking after one’s self. Both are otherwise known as ‘Wards’. Where the testator has children classified as minors at the time of writing a will, a guardian(s) is usually appointed.
Ideally the guardian is someone who has had a relationship with the minor(s), and is often a family member or close friend.
The guardian(s) becomes legally responsible for the care (health, educational, abode and general well being) and management of the assets that may be held in trust for the children. The guardianship is overseen by the court until the minor(s) attain the legal age of 18 years. Guardians are expected to act in the best interest of the child, and must not benefit at the expense of the guardianship. Guardians may be required to present accounts periodically to the courts.
Where there is no will, or no guardian appointed in a will, a court of law can appoint a guardian to take care of wards of the court.
Trustees
A trustee is appointed to hold in trust assets, responsibilities, authority or other such position etc for the benefit of another person(s). A trustee may be an individual or a board of trustees may be established to manage assets held in a trust.
Trustees are responsible for acting and administering a trust with the best interest of the beneficiaries in mind, and making prudent decisions for the benefit of the trust.
Testamentary Trust
The testator may set up a ‘Testamentary Trust’ in a will to provide for and safe guard assets within the estate, which have been bequeathed to children who are minor(s) within the will.
The Testamentary Trustee is charged with preserving the assets held in trust, until such time as specified within the will. This is usually when the beneficiaries attain majority age, or other specified age.
Last Will & Testament
The latest will that is written before death is defined as your ‘last’ will. The expression legally nullifies all other previous wills that may have been written before this last will before death. A will outlines the desired distribution of your estate and whom you entrust with responsibilities after your death.
A Living Will
A living will outlines details of the treatment a person wishes to undergo or not undergo should they become incapacitated due to illness or injury, and are unable to give instructions at this time. The Living will gives explicit instructions on the type and extent of treatment a person wishes to have, it may also specify that the person wishes to have no prolonging of life treatment.
A living will is prepared when a person is of sound mind and capable of making such decisions. It is described as an ‘advance directive’.
Codicils & Altering Wills
A codicil modifies an existing will in writing. The codicil must reference the original last will & testament. Such amendments, additions or removals should be limited in significance, otherwise a new will should be written.
Codicils must be signed by the testator and witnessed, similarly to a will.
Probate
Probate is the process of legally establishing the authenticity of the will. The process confers authority on to the Executor of the will to administer the estate through the execution of the will. This includes mechanisms for the executor to settle the deceased taxes and debts.
Where a will has not been made (intestate) the process of probate establishes the legal heirs of the deceased. Probate in this case determines the estate, and thereafter how it is to be distributed amongst the legal heirs.
The primary function of probate is to transfer titles of the deceased property to legal heirs.
The process of probate is usually conducted by a lawyer, and is completed upon judicial certification. This process can be lengthy.
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