The most basic step in estate planning involves writing a will. A Will is a legal instrument that permits a person, the testator, to make decisions on how his estate will be managed and distributed after his death.
It is the legal document created to provide instructions on how an individual’s property and custody of minor children, if any, should be handled after death. The individual expresses their wishes through the document and names a trustee or executor that they trust to fulfill their stated intentions.
The will also indicates whether a trust should be created after death. Depending on the estate owner’s intentions, a trust can go into effect during their lifetime (living trust) or after their death (testamentary trust).
A will provides certainty to the surviving members of the deceased’s family, by distributing the property of the deceased according to his wishes. It prevents or minimizes family disputes that are likely to arise during division of property.
A will can be used to distribute real property including land as well as movable property such as money, shares in a company, intellectual property and personal effects.
The authenticity of a will is determined through a legal process known as probate. Probate is the first step taken in administering the estate of a deceased person and distributing assets to the beneficiaries. When an individual dies, the custodian of the will must take the will to the probate court or to the executor named in the will within 30 days of the death of the testator.
The probate process is a court-supervised procedure in which the authenticity of the will left behind is proved to be valid and accepted as the true last testament of the deceased. The court officially appoints the executor named in the will, which, in turn, gives the executor the legal power to act on behalf of the deceased.
The estate of a deceased person must go to court through the process of probate so that the decedent’s affairs can be legally concluded. The validity of a will may also be determined when the Court oversees the probate.
If there is real property, someone will need legal authority to transfer the property to the heirs. If the estate is producing income, taxes will have to be paid. The creditors are to be paid from the estate property.
Importance of a will prepared in estate planning
If you own property and assets, you may want to have a will. That way you, rather than your state government, can decide who gets your property and assets when you die. In most cases, wills are written legal documents, but some states do recognize other types of wills. The legal requirements of each state can vary, so it’s essential that your will is drafted and executed properly.
- A Will Must Meet All Legal Requirements – Most wills are formal documents that instruct how money and property should be distributed to each person named as an heir. For a will to be valid, you usually need to have one or two people witness you signing the will and then sign it themselves.
- Your Will Does More than Name Heirs – The main reason for having a will is to allocate your property to heirs in any way you like. But there are other things you can include such as funeral arrangements, legal guardians for your minor children, and who should serve as executor of your will or trustee of any trusts you create.
- A Will Prevents Intestate Succession – When you die without a will, state laws known as “intestate succession laws” will decide which family members will inherit your estate and in what proportion.
- A Will May Eliminate Family Conflict – The division of an estate after death comes with many emotions. The slightest differences can result in hurt feeling and recriminations. As divorce becomes more complex and blended families more common, dividing assets has become even more complicated. A typical situation is when you’re in a second marriage and have children from your first marriage. In this case, allocating your property purposefully between your second spouse and your children can give you peace of mind and prevent your family from fighting over your possessions.
If you do nothing at all, you die “intestate,” which means without a will. When this happens, the state will step in. The probate Court will tally up all of your assets, pay all of your outstanding debts, and distribute what’s left according to a standard formula.
The Government awards half of the estate to the surviving spouse. The rest is divided among the children. If you don’t have children, your estate goes to your spouse is shared between a spouse and certain relatives.
If you are single with children, your estate goes to your children. If you have no spouse and no children, your estate usually goes to your parents.
REQUIREMENTS OF PREPARING A WILL IN ESTATE PLANNING
- The specific requirements for a will depend on law.
- Commonly, the will must be in writing, signed by the person whose will it is (the “testator“) and witnessed by (usually) two persons however an oral will is valid if made at least three months before the death of the testator or a person in Armed Service/ Military Service.
- The testator normally must have attained the age of majority, and must be of “sound mind” at the time the will is executed.
- The witnesses normally MUST be “uninterested”, meaning they’re not beneficiaries of the will.
- Witnesses also must be competent persons.
- A will normally doesn’t need to be notarized, but a document called a “self-proving affidavit” might be created to provide further legal strength to the will.
- A will may be changed or amended if the testator is competent. A new will or a “codicil” can be executed to create a new scheme for disposing of the testator’s property.
- The court can change a will also. This is commonly done when there has been a divorce. Usually a divorce terminates the ex-spouse’s rights under a will, unless a contrary intent is clearly shown. A separation doesn’t terminate a spouse’s rights under a will. The specific impact of divorce on an existing will depends entirely on the law.
- A will may also name guardians of children who are left by the deceased. This is another valuable benefit that a will can provide. However, a Court is not bound by the naming of a guardian in a will. The Court will certainly consider it, and it’s often the only way to make your wishes known after you’ve died.
- Testamentary freedom allows for one to dispose of their property as they wish but this is limited to legal and appropriate means. So if you indicated that all your property should be collected and burned, the law might not give effect to that part of your will. One won’t be able to avoid protections given to others by act of law, either. This can include your spouse’s rights against the estate, community property protections, and special protections for children.
- More than one person can be appointed as executors in the will. Having more than one representative can create problems during probate, however. Normally they will have the same powers to act, and this can create conflict. The nomination of two or more executors/representatives should be carefully considered.
- A will may be contested. A person contests a will by filing the relevant documents with the probate Court. The person normally must be “interested” that is, must be an heir under the will or at law. There are time limits for contesting a will. You must have grounds to have a chance of successfully contesting a will. Unhappiness with the proposed distribution of property is not a valid ground. Valid grounds depend on law. Incapacity, fraud, undue influence and duress are the most common grounds.
- The representative of the estate normally must provide notice of probate to all interested parties, and they can obtain a copy of the will from the probate Court.
Joint tenancy or ownership
A joint tenancy with right of survivorship is a method of owning property with another person. At the death of one owner, the other owner becomes the full owner of the property.
The property isn’t part of the decedent’s estate, and doesn’t go into probate. There are tax implications and simple ownership issues for a joint tenancy.
A joint tenancy is not the equivalent of a will. A will can do a number of other things. A joint tenancy creates a situation where the other joint tenant will get the whole property at the decedent’s death.
But if you give your brother an interest in a joint tenancy on your home, he could sell his interest or his creditors could go after his interest.
CONTENTS/CONDITIONS OF A WILL
A will is a legal declaration by a person, of his wishes or intentions regarding the disposition of his property after his death, duly made and signed in accordance with the law. A will includes any attachments to the will, explaining or altering any part of the will.
Such attachments are known as codicils and have to be signed. A will can either be oral or written. An oral will is only valid if it is made before two witnesses and if it is made three months prior to the testator’s death.
With a will, the surviving members of a deceased’s family are assured that the property of the deceased will be distributed based on his wishes. Wills; therefore, prevent family disputes arising during the distribution of property.
- The Testator’s Name
The testator is the one making the will. As the testator, you need to make a declaration that that is your last will. This is because the latest will usually invalidate the previous declaration. However, an oral will does not invalidate a written will.
Any person, male or female, writing a will has to have testamentary capacity. A person who has attained the age of 18 and who is of sound mind can write a will. A will written under coercion or a threat of violence is void since a person writing a will ought to exercise free will.
- The Gifts
Any property disposed of in a will is known as a gift. A will has to name a gift and the recipient of the gift. This section of the will could also include any conditions that are to be met by the person receiving the gift. A testator can only gift away property that belongs to him.
- An Executor
An executor is the person named by the will, who takes charge of the distribution of the assets of the deceased. This is not a mandatory provision in a will. Where an executor is not named, any persons wishing to administer the estate of the deceased have to apply to court to be named as administrators
A will has to be signed by the testator or by some other person in the presence and by the direction of the testator. The signature or mark of the testator or the signature of the person signing for him has to appear intentional, in order for it to give effect to the document as a will
A will must be signed by two or more competent witnesses. Both witnesses must see the testator sign or the person assigned by the testator sign, or an acknowledgement by the testator that the signature or mark by another person was made at his direction. Each of the witnesses must sign the will in the presence of the testator.
- Additional Provisions
Although not mandatory, a will could also contain the following provisions:
- Appointment of an executor/ personal representative;
- Appointment of guardians for the testator’s minor children;
- Appointment of trustees to administer any trusts set up by the will;
- Directions for payment of taxes and other liabilities of the testator;
- Directions on how the testator’s body should be disposed.
However, these directions are not compulsory and may be disregarded since there’s no property in a dead body.
Invalidity of Parts of the will
The invalidity of certain parts of the will may not invalidate the entire will. For instance, where the testator gave out property that does not belong to him, then such a gift cannot pass to the intended recipient.
This only invalidates that specific gift but does not affect the entire will. The courts have power to alter the contents of a will under certain circumstances.
For example, if the will does not make reasonable provision for a dependant, the court may order that such a dependant be provided for from the testator’s net estate.
Obtaining Grant of Probate
The authority of an executor to distribute the assets of the deceased is given by the will. An application for and grant of probate where there is a will merely reaffirms this authority.
Where the deceased died having written a will and named an executor, the executor is to apply for the grant of probate unless he refuses or declines to do so.
The application for grant of probate is made by filing in the registry a petition and an affidavit in the prescribed form, the original will plus two copies of the will and an original death certificate. If all documents are in order, the Deputy Registrar places the file before the judge. It is then advertised in the Kenya Gazette.
If no objections are raised within 30 days, letter of grant of probate is issued with a copy of the will attached. The grant is confirmed after a period of six months