What is a will and why do we need one?

About wills

No one wants to think about the possibility of death – that is, his/her own death. But it’s important to make sure your family and other loved ones are taken care of if something happens to you. If you don’t have a will, now is the time to think about it seriously. If you have made a will and you want to make changes, do it now because if something happens to you, it will be too late to make those changes.

Always make sure that your wishes are well documented, as the court will consider your will as the final proof of your wishes regarding your assets at your death. Remember, if you don’t have a written will, the courts will judge what should be done with your assets and will order the disposal of your assets in whatever way they think is best. The problem is that this may not be to your liking; so take a serious look at making a will at the earliest.

What is a Will?

A will is a document in which you record your instructions and wishes about the distribution of your property and assets after your death. Every person, of any age, should seriously consider a will at the earliest. A will should not only be for people who have reached an age when death is not far away. People die at all ages and a will is necessary, especially if you have assets and property that need to be assigned to those you want to benefit.

A will is the expression of the person’s wishes regarding how their property should be divided. It is a written statement, signed in accordance with the various formalities provided for by law. It is a legal document containing the names of the people you want to benefit, as well as details of your assets at the date of your death. The people you want to benefit are called beneficiaries.

Your property or assets include everything you own such as your home, land, vehicles, bank accounts, insurance policy payments, furniture, boat, investments such as stocks, personal jewelry, works of art, and so on. A will is the only way you can ensure that your assets are distributed according to your wishes after your death.

What is a valid will?

A valid will is one that has been accepted by the court and enforced by the court through what is known as probate. Probate is approval or acceptance by the court of how your assets should be treated.

A valid will must have the following features:

  • It must be in writing – handwritten, typed or printed.
  • It must be signed with your signature at the end of the document.
  • It must be attended by at least two other persons present at the time of signing. They must acknowledge that they were present and must sign the will in your presence as witnesses. They do not have to be together at the time of signing.

If your will is not drawn up in this way, the court may not accept it and it will not be enforceable (the courts will not enforce it). The court is free to award probate (probate is confirmation that the will is valid and accepted) and your assets can be disposed of as if you had not made a will at all. When exercising this discretion, the court must be satisfied that the document clearly states how you intend to divide or distribute your assets.

About completing a will

Most people know that they must make a will before they die. Unfortunately, most people don’t have a will. They don’t think about making a will until they’re over 50.

Writing a will doesn’t have to be expensive. Once it’s done, you can rest easy knowing that your wishes will be followed after your death. Most wills can be put together fairly easily. Others are more complex and involve more people, substantial assets and cash. These wills should be discussed with lawyers who specialize in this area.

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While a will isn’t essential if you don’t own much (e.g. property for benefits), you may have personal items such as jewelry, manuscripts, or trophies that you want to bequeath to specific individuals. Having a will clarifies this and saves any arguments later on.

If your estate, property and possessions are valuable, make sure a will clearly spells out your wishes and instructions. It may be inconvenient for you to draft a will while you’re alive, but it can save arguments and fights between your beneficiaries.

Why make a will?

If someone dies without making a will, the rules apply according to the law. If you die without a will, the term is; you died “intestate”. If you die in a will, the court decides how things are done, how your property is divided, and who the beneficiaries are. It may not be according to your wishes, so dying is not a good position to be in as far as your beneficiaries are concerned.

Since most of us don’t know when we will die, we should approach making a will as if we don’t have many days left on this earth. This is important because it saves discussions between relatives and beneficiaries after your death.

The following are some examples of what could happen if you were to die in a will. You may not be particularly happy with some of them.

  • If you die without a spouse or children, but your parents leave you, your parents will generally receive all the assets of your estate.
  • If you die and leave a partner behind, your entire estate generally passes to your partner.
  • If you die and are survived by a spouse and children, the estate will most likely be divided between your spouse and children, as determined by the courts. The division of your estate between your spouse and children can create problems for your spouse, who may have to sell a family home to distribute the shares to the children.
  • If you die without a partner, children or parents, but have brothers and sisters, your estate will be divided equally among those brothers and sisters.

There are a number of reasons why you should make a will as soon as possible.

These are:

  • To protect your loved ones.
  • Making a will is one of the few ways to ensure that your life’s work and wealth, built up over the years, will be passed on to the people you want. It provides security for your family and those you are responsible for. Most of your life would be spent building your wealth. These can include home, car, insurance policies and other investments, etc. You want those assets to go to the people you choose, rather than someone else.
  • Smooth transfer of assets.
  • With a will, your assets can be transferred without any problems upon your death. You should prepare a detailed list of your assets and your personal goals before implementing your plan. Your final plan consists of investment advice and planning so that there is provision for an orderly transfer of your assets.
  • To secure the future of your children.
  • If you have children (under adulthood), you may want to appoint guardians and make arrangements for their upkeep and education.
  • For a second marriage.
  • If you are currently in your second marriage, you will need a will to protect the members of your new family. Marriage generally invalidates all wills made before the wedding date, so unless you have a new will that references your new family, your new family may not get the protection you want.
  • de facto relationship.
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If you die without a will, your partner may lose possessions and mementos that rightfully belong to him/her. A de facto spouse is not automatically entitled to your estate if you die without a will. Strangely enough, a divorced ex-spouse can still inherit your estate, because a divorce does not automatically override a will.