Many people wonder why they should have a Will and also believe that it is tempting fate to have one prepared.
There is a famous statement to the effect that “There are two certainties in life, Death and Taxation-!” For that reason, death will come to all of us- it is just a question of when. As regards temptation of fate, many people have household insurance, car insurance or even life insurance. Does this then mean that the day after taking out such cover their house will be robbed, car will crash or that they will automatically die- of course not!
To be honest, many of us know persons who have died without a Will whose estate is distributed without apparent difficulty. So why should anyone go to the trouble and expense of executing a formal Will? The answer is a matter of personal choice. If you don’t write your own Will, the law of intestacy will govern how your estate will be distributed. The law will determine how your property will be distributed upon your death unless you leave your own instructions in a Will. And I agree, when you are dead, chances are that your estate won’t matter much to you. But do you want your life’s work to be distributed amongst unworthy, loathed or snotty beneficiaries? Or would you rather lie peacefully in your grave, knowing your loved ones have benefited from the delicious fruits of your creation? Most of us work hard and act prudently to build up and protect our estate. We want to enjoy the benefits of our labour and ultimately, provide for our dependants. To achieve this, we burn the midnight oil, conclude many contracts and sign numerous documents. It therefore seems reckless to undo all that good by not having a personalized Will, which will give protection and welfare to our dependants and family when we die.
I submit that a Will is one of the most important acts or even a ‘gift’ you can give to your family. Indisputably, death is a very stressful time for anyone connected to the deceased and this is made considerably worse if their affairs are not in order especially when there is confusion as to who should take over what.
At this juncture you could be entertaining three questions: What are the advantages of having a Will; what should be provided for in a Will; how does one go about drafting a Will.
Advantages of having a Will and the Possible Provisions therein
- Maintaining control over property- The making of a Will enables you to maintain control over your property. This is especially important if you have a spouse and children. You can decide which assets and what percentage or value of your assets to leave to your spouse and each of your children or even other beneficiaries. You may want to bequeath specific items and amounts to different beneficiaries. For example, your car, a painting, a family heirloom, photographs, and jewellery. Irrefutably, these items often have strong family ties and a Will can enable you to see to it that these items of sentimental value are retained in the family even as you pass these mementoes to those who will appreciate them. If, on the other hand, you die intestate (without a Will), your beneficiaries will be entitled only to a fixed and equal proportion of your estate.
Of interest is that a Will not only allows you to maintain control over your property but maximum control thereof. For instance, in exercise of maximum control over your property, you may choose to not only place conditions on a beneficiary before they qualify to enjoy a benefit but also how they may or may not use the benefits of their inheritance. In addition, you can decide what will happen if a beneficiary should become incapable of dealing with the inheritance and how the ultimate beneficiaries can be protected. That is not all- you can also nominate an alternative beneficiary if for some reason the first nominated beneficiary cannot inherit. For example, if the nominated beneficiary dies before you.
- Avoiding the rules of intestacy – Part V of the Law of Succession Act, Cap 160 Laws of Kenya provide for the Intestacy Rules. These Rules caters for those who die without a Will. But it is, at best, a second prize. It is worth noting that the said Intestacy Rules only ensure that the family members of the deceased benefit from his estate. Sadly, the shares of the estate which the next of kin receive are arbitrary unless the beneficiaries reach consent, something that is rarely heard of. Given that we are all unique and that our circumstances differ, a one-size-fits-all formula cannot adequately address our individual requirements and as such, the arbitrary shares received by the various beneficiaries are often unsuitable in the circumstances. Had there been a Will, these Rules and their unsuitability could be avoided. It then follows that I can therefore not emphasize enough that it would be prudent to use a Will which is a personal document as a last beneficial act rather than to allow the impersonal provisions of intestacy to take effect.
- Enabling the deceased to appoint personal representatives of his own choice – The making of a will entitles you to appoint personal representatives of your own choice to administer your estate. You are able to choose who will be the executor of your estate and what powers the executor will have. If you like, you can provide that the executor provides security before commencing administration of your estate. Since these are personally appointed, you will have peace of mind that your estate will be divided as you wish after your demise by persons in whom you have confidence and who probably are already acquainted with your estate. Conversely, if a person dies intestate the persons who administer the estate (personal representatives) are appointed by the court and the deceased will have no choice in the matter. Their powers are also limited by law.
- Appointment of guardians- A Will offers a lot of flexibility for an individual who has a spouse, minor children or others for whom he or she wants to provide support after his death. This is especially true for parents, and more so single parents who need to designate guardianship over minor children. You can nominate a guardian to care for your children in the unfortunate event that you should die while they are still minors.
- Benefiting persons outside the immediate family – The rules of intestacy only make provision for the deceased’s immediate family. It is only by making a Will that you can benefit persons outside your immediate family circle. For this reason, a Will will especially come in handy if you are an unmarried couple as you can ensure that your partner is provided for. The Rules of intestacy do not automatically take account of a cohabitant and this can lead to financial difficulties for them. In order to make a claim in an intestate estate, a cohabitant has to raise a court action which can usually be lengthy and expensive. Similarly, if you are separated but not yet officially divorced your spouse or civil partner may still be able to make a claim on your estate until the divorce is finalized.
- Full disclosure of the deceased’s property– The making of a Will will enable you to make a full disclosure of all the property you own or die possessed of, which is not possible in case of intestacy where a lot of your undisclosed property or assets may be lost.
- Directions regarding disposal of deceased’s body – A will may also be used to give directions regarding the disposal of the dead person’s body. This could be in terms of the precise method by which your body is to be disposed of (i.e. burial where and how, cremation etc) or you may wish that your body or a part of it be donated to medical education, research or treatment of patients. It should be noted however that such directions have no binding legal effect as the law recognizes no property in the dead body of a human being. Such provisions therefore amount to a mere request to executors to comply with your wishes.
- Avoiding disputes over the estate – Having a well-crafted Will that provides how and to whom property is to pass upon your demise will help to speed up the administration process and avoid squabbles between your heirs and survivors over your estate.
- Administrative convenience – Administrators of estates (those appointed by Court) derive their authority to administer the estate from the grant of letters of administration while the executors (those appointed by the deceased) derive their authority from the Will. As they derive their authority from the Will, executors can begin to administer the estate from the date of the deceased’s death. The grant of probate merely confirms their authority. The grant of letters of administration takes time which means there is always a considerable lapse of time between the death of the deceased and the grant of letters. The estate of an intestate cannot be administered until after the grant of letters has been obtained. The dependants of an intestate are therefore exposed to inconvenience. Thus through a Will you can ensure that your estate may be dealt with immediately after your death.
Having digested the above, in the next article, I will highlight simple steps to note on preparing a Will. Stay tuned…..
Instructions for Preparing a Simple Will
- Steps One- Make a list of all movable and immovable things belonging to you. This list will help in deciding which asset is to be given to which particular member of the family. The list will also ensure that no item is left out. The list can be further divided into categories, like highly valuable, valuable and less valuable according to your categorization.
- Step Two– Prepare a list of all persons to whom you wish to benefit. While preparing the list of all the beneficiaries, it is better to note down the full name as well as the surname name of the person, especially when there is a joint family.
- Step Three – Decide and compile a final list which contains the assets item-wise and the name of the person who should get it. Sometimes, you may desire to distribute the assets to selected family members, but you may also desire to distribute a token amount or a particular item to another person or a charity of your choice. You can then include the name of the person against the item or mention the amount to be given. You can also include the name and the means by which you wish a certain dependant to be permanently maintained in your absence. E.g the physically challenged
- Step Four– Make a list of the various liabilities which you are yet to discharge together with an action plan and the responsibility of specific family members to discharge these liabilities. You can pass on specific assets to a particular person together with liabilities attached to those assets. E.g. a Mortgage. You can also direct how your body is to be disposed as well as how you wish your funeral and testamentary expenses to be settled.
- Step Five– A Will requires the appointment of an executor or executors for executing the Will. The executor may be of either gender but must be over 18 years and of sound mind. The powers, rights and duties of the executor are to distribute your assets according to the specific directions as contained in your Will. There is no problem in appointing one of the beneficiaries of your assets as an executor.
- Step Six– Once you are done with drafting your Will, the final step is to have it witnessed. There should also be a minimum of two witnesses to a Will. These two witnesses must be independent witnesses i.e, not interested parties or beneficiaries to your Will. It is noteworthy however, that the Law of Succession Act provides that where interested parties or beneficiaries to a Will witness the Will, their signatures must be witnessed by two other independent witnesses.
Having worked so hard and tirelessly to obtain your properties, it would only be fair that after your demise the fruits of your labour be distributed as you wish. It is now manifest that dying without a Will can result to your properties being arbitrary distributed not to mention the numerous squabbles and fightings among your family members you risk leaving behind.
There is no specification to writing a Will in a particular format or a particular language. For this reason, it is easy to draft that simple but very important document that will not only bring peace to you at your demise but also the rest of the family members left behind. But I must be quick to add that even though drafting a Will can be an easy task, it is not exactly a ride-in the park task because of the legalities that it entails. Accordingly it is advisable to seek legal assistance in drafting one.
Secure your beneficiaries’ future, draw a Will, and enjoy the freedom and benefits of testation!
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