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About your last will and testament…

By Finbar Garcia LUTCF, FSS, MFA

So, are you ready to distribute your wealth? Have you decided on the ‘who’, ‘how’ and ‘when’? This can be a daunting task, as some of your assets may have sentimental value and your desire is for it to be passed on to other generations. The best way to distribute is to have a will.

Leaving a will ensures that your assets are distributed in the way you wish. If you do not leave a will, your assets will be distributed in accordance with the law.

There are many types of wills. However, writing a will must meet certain requirements in order to be considered valid. When considering what type of will to create, it’s important to consider your property, family members and employment. Let’s look at some of the main types of wills.

Simple Will: A Simple Will is for a person who has a ‘simple estate’, in other words, you have a small amount of assets and a fairly good idea as to the designated beneficiaries of those assets. You can also identify a guardian for minor children in event of the death of both parents.

Writing this type of will is indeed simple and you can download a simple will format. However, I strongly suggest that you seek legal advice for proper wording and framework.

Testamentary Trust Will: A Testamentary Trust Will places some of your assets into a trust for the benefit of your beneficiaries and names a trustee to handle the trust. This is particularly useful if you have beneficiaries who are minors or who you don’t want to inherit your assets to handle on their own. Through this type of will, you can place conditions on the inheritance, which may be gradual based on age or other factors.

Reciprocal and Joint Will: This is signed by two or more people as a separate will for each testator. This is often the case of married couples who write basically identical testaments indicating that the other spouse inherits their property upon their death.

In the event that both partners die at the same time, the two documents designate another beneficiary. The terms of reciprocal and joint wills, including executor, beneficiaries and other provisions cannot be changed even after the death of one of the testators. Because of the inflexibility, reciprocal and joint wills can become problematic for the surviving spouse, as their wishes may change.

Pour Over Will: Pour Over Wills are for persons who already have established a trust and put their assets in the trust. When a person who has a revocable living trust dies, their assets in the trust are distributed based on the terms of the trust. However, people may acquire more property after the trust’s creation, and the Pour Over Will allows for these additional assets to ‘pour over’ into the trust upon the person’s death, thereby allowing these assets to be distributed according to the terms of the trust.

Living Will: A Living Will has nothing to do with distributing your property after your death. Instead, it allows you to choose what medical treatments you want to have if you become incapacitated.

In a living will you may also name someone to make decisions on your behalf, as no-one can spell out all possible potential complications one might encounter while incapacitated.

You can have more than one type of will at the same time and they can be valid, as a living will can co-exist with a simple will since they serve entirely different purposes.

Before you prepare a will, you need to be sure of the assets you are placing in the will to be probated and distributed. Assets like life insurance policies allow you to name beneficiaries, so some of these can be left out from the will, allowing the named beneficiary to have access to the policy proceeds in the case of a surviving spouse, allowing your family to continue living comfortably until your will is probated.

The Probation of Wills and Administration of Estates take some time to be completed, as the attorney would need to have assessments done to determine the value of your estate.

Based on the size and compilation of your assets, you may want to transfer property to your loved ones at the appropriate time while you are living, thereby removing these from any probate. Lawyers may have a fee structure based on a minimum fee or percentage of the value of the estate to be probated.

Point to note, once a Probate of Will or Administration of Estate is probated, the process allows for a waiting period of 21 days after it is advertised. Someone who believes that they have a legal interest in your assets, can file a caveat, delaying the process, this can now be referred to the courts for final determination and the process can be a lengthy one.

Once the process is over, the person who filed for the estate would be given ‘the grant’ to proceed to distribute your estate. There is cost attached to having your will probated, as the person whom you named as executor would incur cost to have the process completed. This cost can be repaid from proceeds from your estate after probate or from the proceeds of a life insurance policy that covers your final expenses.

For everyone who asks, receives. Everyone who seeks, finds. ….Matt 7:8


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