Where there's a will...

JIS

Wednesday, June 09, 2010    

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BY writing and leaving a last will and testament, you will be in a position to determine and instruct how your assets are to be distributed and dealt with, after your death.

You will also be able to ensure that only the people you choose will benefit from your estate and, most importantly, ensure that the distribution of your assets will be in accordance with your wishes.

In an interview with JIS News, corporate affairs manager at the Administrator General's Department (AGD) Ava Dean Martin said the writing of a will is of utmost importance, and something every Jamaican from the legal age of 18 should contemplate doing.

A will is a written document, through which a testator seeks to distribute his or her assets upon death. A testator is a person who has written and executed a last will and testament that is in effect at the time of his/her death.

"We really encourage persons to practise making their wills, as an important part of practising proper estate planning. Making a will is the only way that a testator can have autonomy over how his or her estate is distributed, to whom and what proportion. So it gives the testator autonomy over his or her assets," she says.

The procedure is simple. Firstly, one should take into consideration all his/her assets, then decide which relatives, friends or persons should benefit and in what proportion.

"Then they must address their minds to who they are going to appoint as their executor. The Jamaica Wills Act stipulates that at least one executor must be appointed under the will, and that must be someone whom the testator trusts, so that person will act with alacrity and take on the duties of executorship and administer the estate in a quick time, or very soon after the death of the testator," Martin says.

An executor is the person responsible for administering the estate. One must appoint at least one executor, but no more than four. It is recommended that at least two executors be appointed to ensure that, if one dies before the testator or refuses to act on the death of the testator, then another is available to administer the estate.

Martin notes that, even though many people do not need a lawyer to draft a basic will if, for example, a large estate is not being left behind, it is advised that legal advice be sought when large assets are involved.

"The benefit of having legal advice is so that persons can know what the requirements are for setting up say, for example, a Trust under the will; where you might identify a certain amount of money that should go to a minor's education and things of that nature and you are appointing a trustee for that purpose, so it really is advisable that an attorney be consulted before one sits down to make a will," she states.

One important point to remember is that any person who should benefit from the will should not serve as a witness. This can result in the will becoming void. Therefore, any person who is to receive any benefit under a will, as well as your executor, trustee and guardian, including such a person's spouse, should not sign as a witness as they would be disqualified from benefiting.

"If you intend to give someone, or make a gift to someone under the will, do not ask them to serve as an attesting witness, nor their spouses," she adds.

"Once you have made your will and you remarry, your duty is to write a new will because the act of marriage automatically revokes the will," she posits.

If you should get married after writing a first will, once another one is drafted the second will is the one that is recognised.

"You only destroy the existing one once you are sure that the new one that you are doing is duly executed and witnessed as prescribed under the law," she warns.

She also adds that, upon completion of the new will, a copy should be given to the executor and the other (s) should be kept by the testator for safekeeping.

"I also advise the testator to make someone else aware of the whereabouts of the will, because it makes little sense that the testator has gone to great lengths to draft his or her will and after he or she passes no one is aware of the whereabouts. So many times some persons are said to have died intestate, which is without a will, when in fact the whereabouts are unknown," she states.

If persons should die intestate leaving minors or adult beneficiaries, the AGD's mission of protecting the interest of minors, beneficiaries and creditors of the estate will take effect, as required by law.

-- JIS

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