INTESTACY? THINK AGAIN

THE MOST IMPORTANT DOCUMENT YOU MAY EVER WRITE

Whatever the excuse may be for putting off the drafting of a Will, many people do not realize that writing one actually prevents what is feared. In fact, a Will may be the most important document that you ever write, because it allows you to select the persons who will receive what you own when you die.

A Will is simply put an expression of an individual’s wishes and desires concerning his assets after demise. It is a powerful legal document and the contents are binding on all survivors of the deceased. No matter how strange the contents of a Will appear, it is respected as the final wishes of the deceased and would not be altered, except on proof that the Testator lacked the capacity to do so at the time the Will was made (e.g., if he was of unsound mind) or he was influenced by a beneficiary under the Will or third party.

Several factors may influence the decision to draw up a Will. However, it is our opinion that the most important of the factors should include decisions on:

• Those entitled to benefit from the Estate
• Whether the assets would impose any form of liability on the beneficiaries (e.g. Inheritance Tax)
• Outstanding commitments that should (Mortgages, Loans, etc.)
•  Attendant cost of administering and maintaining the Estate (so as not to impose unnecessary burden on the Administrators) etc.

A Will sets out specific directions on how the assets of a deceased would be distributed after his death, and includes provisions for:

1. Distribution of real and personal property
2. appointment of guardian/s for children who are minors
3. settlement of estate taxes and outstanding debts
4. Administrators/Executors for the Estate, etc.

 

Why You Should Write a Will

Most people balk at the idea of writing a Will because it is a glaring reminder that humans are mortal. Some assume that Will writing is only for the rich. This is very erroneous. The fallout of not writing a Will is however not always pleasant. You would not be able to determine who gets what amongst your assets or how the assets are administered.

The attendant rancor and strife amongst the survivors of the deceased and those who believe they are entitled to the properties left behind is another reason why everyone should endeavour to write Will whilst there is the grace and time to do so. Worse still, should there be no known relations/beneficiaries to take over the Estate, the assets would end up as the property of the State.

A Will ensures adequate security for the family of the Testator, particularly the immediate (spouse and children) and protects them from the trauma that is some time associated with decision making and administration of estates.  The desires and wishes of the Testator is also protected and implemented steadfastly.

 

Examples of Assets under an Estate

1. Real property
2. Bank accounts
3. Stocks, Shares and other forms of investment
4. Life Assurance and other Insurance policies
5. Pension Fund and Death benefits
6. Furniture
7. Personal effects
8. Benefits from/interest in other estates

 

Examples of the Liabilities attaching to the Estate of a Deceased

1. Mortgage/s
2. Loans/Overdraft facility/ies
3. Credit card debts

 

Technicalities to Watch out for When Writing a Will

Writing a will is just fine. But do you know there are certain details that could render your Will invalid? It is therefore very important whilst drawing up your Will to consult a lawyer with credible expertise in estate matters.

Cases abound on Testators who have written their Will themselves and instead of benefits, left behind legal disputes for their family and beneficiaries to resolve.

A Will must comply with contemporary legislation and regulations. Failure to ensure compliance would result in the assets of the Testator being distributed in a way contrary to his desires. Therefore, the Testator must ensure/pay particular attention to the following, amongst other things:

• Compliance with the provisions of the relevant laws guiding the administration of estates
• That the Will was not influenced by any party
• A beneficiary under the Will is not involved in the drafting nor serves as a witness (this could disqualify the beneficiary from getting any benefit)[1]
• Joint properties and assets with spouse/third party[2]
• Existing beneficiaries under life insurance and annuities
• The Will is lodged at the Probate section of the High Court, etc.

 

What Should inform your Choice of Administrators/Executors

Just before you make that decision to appoint some of your relatives and friends as Executors to your estate, think of the impact of that decision on the proposed Executors, the Estate and your family.

Administering an Estate, particularly a medium or large one could be tremendous work. In most cases, the service of Executors is gratuitous. Your kith and kin would definitely not thank you in the future if administering your estate places a lot of burden on and rob them of sleep at night.

Depending on the size of your Estate, you may decide to use a Corporate Executor (Corporate Trustees) as against individual executors. Corporate Trustees are known to have significant experience in estates administration and have the technical knowledge and legal expertise to handle virtually every situation. They also have perpetual existence. Examples of a Corporate Trustee you could consult in Nigeria are: First Trustees Nigeria Limited, Stanbic IBTC Trustees Limited and Cornerstone Trustees Limited.

Therefore when making the decision on who to entrust your estate to, pay attention to:

• The size of the estate
• Your relationship with the proposed Executors and whether you could trust them collectively and individually
• The disposition of your family/beneficiaries to the would-be Executors or any of them.
• Whether the Executors would be willing and glad to serve

 

Amending Your Will

After writing your Will, there is the possibility of acquiring additional properties or a change in situation and circumstances. You may therefore desire to update your Will to accommodate the changes that occurred after you had written same. This can be done by either destroying the initial Will and writing a new one if they are major changes or adding a Codicil to the Will if the changes are minor.[3] A Codicil is used to effect a change in an existing Will and must be signed and dated by the Testator.[4]

 

Having a Joint Will with your Spouse[5]

A joint Will is a single document executed by two persons (usually a married couple), leaving all their assets to each other and subsequently to their offspring after the passing of both parents. The idea of a Joint Will may seem simple and appealing but it could be create unforeseen problems.

Joint Wills usually contain a clause to the effect that one spouse cannot change the terms of the Will without the concurrence of the other spouse. The effect of this is that if one spouse dies, the other cannot change the Will after his/her demise.

The need for proper and sound legal advice and counsel cannot therefore be over-emphasized

 

Probate

The word ‘probate’ means to prove or validate. To obtain Probate simply means to get the approval of the Court to the document, to recognize it as the valid and last testament of the deceased and also confirm the appointment of the persons named as Executors in the Will.[6] This may also be referred to as Letters of Administration with Will Annexed.

Where the Executor/s named in the Will is/are unable or unwilling to serve, the Executor/s can write to the Probate and state the inability/unwillingness serve (this means to step down or renounce probate). The Court may then appoint Administrators for the estate in the following order:

• The surviving spouse
• The children of the deceased
• The parents of the deceased
• Brothers and sisters of the deceased
• Grandparents
• Uncles and aunts.

 

It is advised that Corporate Executors be appointed if the Testator is not sure of the disposition of the proposed Executors, particularly if it is a large estate.

Finally, the Testator should ensure that:

1. Any previous testament is revoked and the copy/copies destroyed, leaving only the final Will in existence;
2. Someone (a trusted person) is aware that the Testator has a Will in existence; and
3. That the Will is lodged at the Probate Registry[7]

 

 

[1] The Solicitor who prepares the Will should also not serve as a witness

[2] Ordinarily, joint property should be passed on to the surviving joint owner and not included in the Will of the deceased. If it is however a property jointly owned under Tenancy in Common, it may be passed on in the Will.

[3] Bear in mind that the most current and valid version of a Will that has been amended is the one that that would be considered after the demise of the Testator

[4] A Codicil must also be signed by two witnesses and dated. It is tidier to also have a Notary Public notarize same.

[5] Joint Wills are rarely used now

[6] In a situation where a person dies intestate, an application would be made to the Probate Court by the next of kin/personal representatives for Letters of Administration without Will.

 

[7] It is also wise to keep a copy in a safe place or the office of the Testator’s legal representatives