Wed | Sep 26, 2018

Laws of Eve | The advantages of having a will

Published:Monday | September 10, 2018 | 12:00 AMSherry-Ann McGregor

What do you want to happen to your assets after you pass away? Who are the persons you want to provide for after you die? Are those persons your friends or relatives, or a charity that is dear to your heart? Whatever those wishes may be, the only way for you to have a say in who shares your assets after you die is to ensure that you have a valid will.

Most people have probably grown tired of receiving the advice that the most basic form of estate planning is the preparation of a will. However, for as many times as it has been said, one would have expected that people who have ready access to legal advice and have loved ones who rely on them for financial support would all have wills. That is just not so, and Prince and Aretha Franklin are just two recent examples of wealthy celebrities who died without leaving behind wills (that is, intestate).

 

PRINCE & ARETHA

 

In Prince's case, it has been reported that two years after his death, no member of his family has yet received one cent from his estate. In Aretha's case, although it is apparent that her four sons will share her entire estate equally, her eldest son, Clarence, has special needs and relied exclusively on her for support, but she died intestate at age 76.

What difference does it make whether you leave behind a will or not? This is one of those rare cases where even sceptics will have to admit that there is no negative side to having a will. Below are some of the positives:

You can speak from the grave. No-one will have to guess what your wishes are, because the will clearly state them and, most important, provided the will is valid, and your estate is solvent, your assets are likely to be distributed in accordance with the stipulations in your will.

Unintended beneficiaries can usually be avoided. In other words, the intestacy laws (the Intestates' Estates and Property Charges Act, in Jamaica), which indicate the order of priority for persons to benefit from your estate and the proportions in which they share, will not apply. Your estranged wife, husband or adult child will still stand to benefit from your estate if you die intestate.

You can choose someone you trust to administer your estate, rather than having that selection dictated by the intestacy laws. In other words, your wife or husband may not be the person you consider best suited to administer your estate, but spouses are first in line to be administrators of intestate estates.

Depending on the circumstances in which you die, it may be necessary to commence court action in a wrongful-death claim or carry on some other form of court proceedings for the benefit of your loved ones. With a duly appointed executor under a will, that court action can commence immediately after you die, but if there is no executor named in a will or no will at all, that court action will have to await the appointment of an administrator before it can commence.

The administration of your estate is likely to proceed more smoothly and quickly than if there was no will.

If you leave behind small children, you can appoint a testamentary guardian and/or trustee under your will to protect them.

As the preparation of a will must conform to the provisions of the wills Act in order to be valid, it is helpful to get legal advice to ensure that it is properly completed. However, you can prepare your will, and I will cover the basic steps involved in doing so in next week's article.

- Sherry-Ann McGregor is a partner, mediator and arbitrator in the firm of Nunes Scholefield DeLeon & Co. Please send questions and comments to lawsofeve@gmail.com or lifestyle@gleanerjm.com.