by Raymond Tan, Lawyer and Public Notary – Tan and Tan Lawyers
You cannot take it with you but what you leave behind may inflict conflict and heartache on the ones you love. So the question inevitably asked is:
Do I need a will or do I have to update my existing will?
The saying goes that there is nothing more certain than death and taxes. You never know when your time will be up.
When Steve Irwin was stung and died, the number of queries on estate planning rose substantially at my firm.
Abraham Lincoln, Bob Marley, Jimi Hendrix, Prince, John Denver and Pablo Picasso are some of the celebrities who died without wills. Can you imagine the fight over their estate?
Some legal issues that may arise for your beneficiaries if there is no Will or the Will is not valid:
If you die without a Will, all your money and possessions (your Estate) will be distributed according to strict legal rules and regulations. These rules are called the laws of intestacy. In many cases,the intestacy laws distribute an estate in a way the deceased would not have wanted, sometimes with disastrous results.
Anyone whose circumstances have changed- perhaps through marriage, the birth of children, divorce, remarriage or the death of a close relative, for example- should make a new will.
If you get married, any will you made when single/divorced is revoked (cancelled). There are some exceptions to this but it is always advisable to make a new Will after marriage.
So what do you do? Do you rush in to see your lawyer and get one done immediately? No, do not rush in. Have some thought on the following questions first.
WHO WILL BE MY TRUSTEE?
This should be a person you trust to manage your estate. He or she will be able to sell your properties and deal with your money. The trustee should be financially savvy and not disappear with your money.
WHO WILL LOOK AFTER MY YOUNG CHILDREN?
Remember the episode of EVERYONE LOVES RAYMOND and how he wanted to appoint his friend and wife as guardian of his children. His friend’s answer was, “What, and deal with your crazy family?” Raymond had to also deal with the chagrin of his parents and Robert at not being chosen.
WHO DO I LEAVE MY PROPERTIES TO?
Yes, where do your millions go? How do I distribute it? Does that son who cheated me and never visited me get anything?
DO I USE A TESTAMENTARY TRUST WILL?
This is a specialised will that has added protection for the beneficiariesand also tax saving consequences.
Tan’s ten good reasons to have a will:
- A Will lessens the pain felt by your loved ones at a most difficult time.
- The guardianship of young children who survive can be made known instead of having relatives argue as to who takes care of your children.
- A Will prevent bitter family battles. This is especially important if there has been a second marriage. Having one family fight over your assets is bad enough. Can you imagine two families squabbling?
- A Will simplify the legal process. The process of unfreezing the deceased’s estate can be complicated and costly.
- A Will should name who gets your assets. If you do not name your beneficiaries, the law has a fixed formula for distribution of assets. That formula may not be as per your intentions.
- A Will prevents confusion. Let your family know what your wishes are. Do you wish to be cremated and have your ashes scattered to the four corners of the wind?
- A Will hopefully help the family business. Upon death, all assets of the deceased are frozen. Businesses may have a vacuum in management that ultimately leads to the business operating at a loss and a resultant loss of the family home.
- A Will minimises the legal costs of settling the deceased’s estate.
- A Will should eliminate the cost for an administrator’s bond. A bond is sometimes required by the courts before they will allow the deceased estate to be dealt with.
- A Will allows you to tell that wayward child why he or she will not get anything.
TO CUT A LONG STORY SHORT….
We acted for a mother whose son had died in a car accident. The driver of the car was the son’s girlfriend. No one knew how long the son and this girlfriend had been dating or whether they were in a de factorelationship.
The son did not have a will and left properties jointly owned with the mother and also in his own name.
Immediately after the funeral, the girlfriend claimed she was in a de facto relationship with the son. Under the Administration Act 1903, a de facto partner is entitled to a substantial portion of the estate.
Can you imagine the angst of the mother in having to deal with the girlfriend’s claim?The mother’s words to me were: “She killed my son, and now she is coming after our properties?”
The problem was that there was no will and there was no way anyonecould ascertain whether the girlfriend could prove the de facto relationship was genuine.
The mother had to swallow a bitter pill and settle the matter outof court.
Lesson to be taken: Make sure you have a will.
Readers can contact Mr Tan through ray@tanandtanlawyers.com where he offers free legal advice for general queries.
