Essentials of a will

I have written about wills and codicils before, but this is just to highlight certain aspects of a will.

First of all, a will is a document that is made by you to distribute your property after death. Hence, it only becomes active after death. A codicil is a document that is used to change clauses or add or cancel items in your will. You should know that there are many ways of cancelling a will, but the main way of cancelling or destroying your will is to make a new will.{{more}} Certain testamentary formalities must be followed, otherwise probate could be denied.

It is important that your will bears a date and that your codicil refers to the date of the will, which you want to change. You would not want to do anything that would start a conflict after your death and, of course, you want to have a say as to how your estate is to be distributed. If you do not make a will, then the law would share your estate for you by a process called administration. In other words, it dictates who should inherit. It is, however, your close family who benefits, so that nieces, aunts, uncles, mother, father, caretaker or good friends get nothing when your estate is administered under the law. If for any reason your will fails and cannot be probated, it can be administered with the will attached. In other words, it would have to go through administration with will annexed, but the gifts that you made would be distributed in the same way they would have been distributed under the will. In your will you become the “testator”.

In addition to distributing your estate, your will could carry information about how you want your earthly remains to be disposed, whether by burial or cremation. You can also appoint a guardian for children under 18 years and trustees to administer trust property.

Revocation clause

The first part of your will contains a revocation clause. This states that any previous will would be cancelled. So, if you made a will in 1998 and another in 2012, the 2012 will revoke the 1998 will. The revocation clause is worded in this way “I revoke all former testamentary dispositions made by me and declare this to be my last will”.

The Executor

The Executor (male) or executrix (female) plays an important role after your death and must be chosen carefully. You should not spring the role of executor on a person. He or she should be consulted. An executor is not normally paid, but where there is quite a bit of work for him to do, especially if he is appointed trustee, you would need to offer some money. He will act on your behalf to make sure that your wishes are carried out. He would offer the will for probate, discharge any liabilities and distribute the remainder to your beneficiaries.

If you set up a trust for your estate or parts of your estate, you could also ask the executor to act as a trustee. Persons with children under the age of 18 years would want someone to look after the estate and a trust could be set up under the will. Another person could be named as trustee in case the executor is unable to serve. Executor could be a friend or family member or beneficiary. An executor can witness the will, but if he is a beneficiary, his interest could be affected adversely.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com