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Writing a Will

21-Apr-2016


Why is it important to write a will?

There are several good reasons why an individual should make a will. If someone dies intestate, that is without having a will in place, there are certain rules under the Administration of Estates Act that dictates how your money, property or possessions should be distributed. Such rules may go against your personal wishes.

The law on intestacy does not recognise partners outside marriage or civil partnership. Such partners are therefore not protected under the Administration of Estates Act. They cannot inherit from each other unless there is a will. The death of one partner may create serious financial problems for the remaining partner.

If you have children, writing a will allows you to make proper arrangements for your children in the event that both parents were to pass away before they reach the age of 18. You will be able to elect a legal guardian who will be responsible for their upbringing instead of surviving relatives making the decision for you upon your passing.

What should be included in a will?

Before writing a will, it is important to consider the following points:

  • What your estate consists of and how you would like to distribute it
  • Who will be appointed as Executor/Executrix
  • Who will be listed as beneficiaries

Estate

An estate may include:

  • Money
  • Property
  • Personal possessions
  • Savings and bonds
  • Occupational and personal pensions
  • Stocks and shares
  • Insurance policies
  • Bank and building society accounts
  • Animals

Executor/Executrix

An Executor/Executrix is the person(s) who will be responsible for the estate upon your passing. They will collect together all the assets of the estate, deal with all the paperwork, pay all the debts, liabilities, administration and funeral expenses out of the money in the estate and then proceed to distributing the net estate in accordance with your wishes in your will.

The people most commonly appointed as executors are relatives, friends, solicitors or accountants. An Executor/Executrix holds a great deal of responsibility, and for this reason we recommend you approach the person(s) you wish to appoint to see if they agree to take on the responsibility.

Beneficiaries

Before drafting a will, you will need to decide who the beneficiaries of the estate will be. You can choose as many beneficiaries as you wish. Those elected as beneficiaries are usually spouses, children, other relatives and even organisations and charities.

If children under the age of 18 are named as beneficiaries, they are unable to inherit a lump sum. Any funds of which they are the beneficiaries must be held in trust until they attain the age of 18 or any later age you specify in the will.

What are the requirements for a valid will?

In order for a will to be valid, it must be:-

  • In writing; and
  • Made by a person over the age of 18; and
  • Made voluntarily and without pressure from any other person; and
  • Made by a person who is of sound mind and understands the effect of the will; and
  • Signed by the person making the will in the presence of two witnesses; and
  • Signed by the two witnesses, in the presence of the person making the will.

It is important to note, that a witness (or the married or civil partner of the witness) cannot benefit from the will. If there are any legacies for the witness (or the married or civil partner of the witness), whist the will remains valid, the beneficiary/witness will not be able to inherit under the will and will therefore lose their entitlement.

Where to keep a will?

A will can be kept in your home, in a solicitor’s office or at your bank. It is recommended that you inform the executor/executrix and the beneficiaries of the estate to the whereabouts of the original will so that upon your passing they can apply for the Grant of Probate.

How to keep your will up to date?

It is important to keep your will as up to date as possible to take into account the change of circumstances that may occur throughout the years. The most common changes of circumstances are the following:-

  • Getting married, remarried or registering a civil partnership
  • Getting divorced, separated or dissolving a civil partnership
  • The birth or adoption of children you may wish to add as beneficiaries

You may change an existing will in two ways, by either writing a completely new will or by adding a codicil.

A codicil is a supplement to a will which makes some alterations but leaves the rest of the will intact. The codicil must be signed by the person who made the will and witnessed by two individuals. The witnesses do not have to be the same as for the original will.

Codicils are suitable for minor and straightforward changes. If there are any complicated and substantial changes involved, we recommend that a new will be made. Such a will must include a clause stating that all previous wills and codicils are revoked.

Janieve Buhagiar, Associate.