Your estate: Part I - Why make a will?
Nathan Samuels · November 26th, 2008
Why make a will? “Cause you’re gonna die!” is perhaps the most frank, to the point answer I’ve ever heard. Unfortunately, it’s not an answer most of us want to hear. But it’s true. At some point in life, we die. And it’s at that point that your wishes for the things you own can either cease to exist or live on, in a will, as your final words to loved ones left behind.
Although I strongly recommend not writing your own will but having your attorney prepare one for you (for reasons I plan discuss in Part II of this series), making your will does not have to be an expensive, long or complicated process. If you take the time, prior to meeting with your attorney, to determine what your estate consists of (e.g., bank account funds, a house, a taxi licence, jewellery, etc) and how you want each asset to be distributed after you die, the average will can be prepared within a matter of days and at a reasonable cost.
A second reason for making a will is that it tends to make the task of dealing with your estate, after you die, easier for your family and loved ones. Why? Because a will is essentially a tailor-made plan for the administration of your estate.
If you die without a will, the law applies a standard administration process to your estate, which may not adequately deal with the particulars of your estate or conform exactly to your wishes. For example, if you die without a will, the law will determine your estate representative – the person(s) (usually a family member) responsible for administering your estate, and many times, the person upon whom this responsibility falls is either not aware of it, not interested or is not the best person suited for the task; as a result, they either have to go through the process of renouncing this responsibility (allowing it to fall to another family member who is more willing or able) or simply carry through with it the best they can.
The advantage of making a will is that it allows you to choose the best person suited to administer your estate, who may not even be a family member but rather a close friend or business associate. Making a will also allows you to discuss the administration of your estate with your estate representative so that, if need be, he or she can be aware of your estate matters and will not be surprised with the responsibility of administering your estate when you die.
Lastly and perhaps most importantly, a will gives you the ability to decide. As a result of making a will, you get to decide what happens to the things you own, not the law. Without a will, the law will apply a standard set of rules to the distribution of your assets which will probably see your assets going to your immediate surviving family members.
That’s not so bad, but the problem is that the law does not accommodate your particular family or social history. Although you may want the majority of your estate to go to your immediate family members, most clients envision their assets being distributed in very particular ways. This might include gifts to family members of the same relation in unequal shares, gifts to close friends, certain gifts to certain people and gifts to charities or non-profit organisations, none of which is possible without making a will.
For example, with a will, a parent of two can choose to give the family home to the child without a house and the remaining assets to the child who does. In other cases, clients have decided that an irresponsible child is not to receive anything until they have reached a certain age or not to receive anything at all due to their substance abuse problem. Making a will is not as daunting as perhaps it seems. It communicates consideration toward your loved ones, who will ultimately be left with the task of administering your estate, and it gives you the freedom to choose exactly how and to whom your estate will be distributed, which, in the end, goes a long way toward leaving a lasting legacy.
Nathan Samuels is an associate in the Mello Jones & Martin property, trusts and estates practice group.
(with permission of Bermuda Sun)