A weblog on topical legal issues.

Do I Really Need a Will?

The inevitability of death isn't something we like to think about. It's scary and uncertain and probably won't happen for now, right? 

The truth is that death will happen to all of us at some point and it's important to make certain provisions for it. Writing a will can protect you, your assets and your loved ones. Read on to see why you should write your will before it's too late.

What is a will?

In the final song on Jay Z's 4:44 album, we hear his daughter Blue Ivy ask "Daddy, what's a will?" You may have asked the same question, too. Quite simply, a will is a legal document where a person (known as a testator) expresses their final wishes in writing. A will will set out, usually in great detail, what you wish to happen to your property in the event of your death. 

What happens if I die without a will?

This is known as intestacy. When someone dies without a will, the state will decide what is to be done with their estate. These statutory provisions are outlined in the Intestates' Estates and Property Charges Act. Most persons want to distribute their property differently than how the state would distribute it. You may want to leave gifts to friends, a boyfriend or girlfriend or even to your favourite charity or your alma mater. None of this is possible under an intestacy. The Act not only appoints specific family members to inherit an intestate person's property, it also stipulates what proportions should be given to whom. Writing a will ensures that you take control of your estate so that it will be distributed in the way that you truly want.

Can intestacy happen even if I wrote a will?

Actually, yes. This is known as partial intestacy. Partial intestacy happens when a testator did not dispose of all of their assets in the will. The properties that are unaccounted for will fall on intestacy, to be governed by the provisions of the Intestates' Estates and Property Charges Act. This is why it's extremely important that your will completely and accurately sets out your wishes.

Am I rich enough to need a will?

There's a common misconception that only the very wealthy need wills. This couldn't be further from the truth. Your estate is your estate, regardless of its size or its contents. Everyone's testamentary wishes are important and valid.

What if I change my mind?

One important quality of a will is that it's revocable, as long as you're still alive. You can revoke a will by destroying it (though there are very technical rules as to what constitutes destruction), by writing a new will or by getting married. Marriage automatically voids a will, whether you want it to or not. If you want to keep your existing will but make new additions, you can write what is known as a codicil.

It's more than just property distribution

Wills do a lot more than just outline what should happen to your belongings. If you have minor children (children under the age of 18), your will can also outline legal guardianship of your children in the event of your death. Your will also enables you to appoint an executor - the person who will be in charge of your estate when you die. Wills can also help you to settle debts and create trusts for your children or other minors that you care about. 

Do I need an attorney?

To be honest, no. You can do some Googling, type up your will on your laptop, print it out and sign it, along with your two witnesses. You can also visit a bookstore or pharmacy and purchase a will form. However, you'd be doing yourself and your estate a great disservice by not seeking the advice of a qualified attorney-at-law. The interpretation of wills is very nuanced and is governed by centuries-old rules of interpretation. A misplaced comma or a sentence phrased incorrectly could actually give effect to the very opposite of your wishes. Two paragraphs may be deemed to be conflicting and a gift may fall on intestacy, to be governed by statute, instead of given to your good friend, Anthony, who will be very displeased at this unfortunate turn of events. There is also the possibility of partial intestacy, which we discussed earlier. There are several reasons why a will may be deemed to be invalid, which could cause a lot of problems for your loved ones.

Attorneys are likely to consider possibilities that may not have even entered your mind and are able to offer expert guidance on estate planning to ensure that your assets and your loved ones are protected. My take? Seek the services of an attorney-at-law to ensure that your wishes will be carried out.