This is part three of our how-to legal feature that seeks to give step-by-step information on how to navigate the legal system for common procedures. Here's how to make a will.
A will is a written expression of a person's intention as it relates to the distribution of their assets upon death, and is a part of proper estate planning. A will is an effective tool in ensuring that your assets, which would have probably taken a while to amass, are transferred upon death in the way you prefer.
If you die without leaving a valid will, the law would decide how your real estate and personal properties are distributed, which might go contrary to what you would have liked. This is called dying intestate.
While you can make your own will, it is usually advisable that you prepare one with the assistance of an attorney, since not preparing a proper one is like making none at all. Because there are certain formalities associated with writing a will, having legal advice is always best.
Also important too is that your will is practical. Leaving one car for your three children could, for example, result in some amount of conflict. Apart from physical assets, you will also need to specify things such as the appointment of guardianship over your children if they are minors.
In order for your will to be valid here is what you will need to do:
1. Identify yourself as testator or testatrix. This is the person making the will. This person should be over 18 years of age and should be writing the will without any undue influence. Your will must state that it is your last and that it should revoke all previous wills that were executed before. It is important that you identify yourself by name.
2. Appoint an executor. This person or institution will be responsible for distributing your assets upon death according to the instructions you have outlined in your will. This person must be honest, prudent and resourceful as they will be the only one with the authority to apply to the court for the probate of your will or give instructions as to the payment of your debts, such as those acquired during your funeral, for example.
3. Do the math and ensure that your assets are divided up accurately. List the benefactors of your will and appropriate what percentage of your financial assets, for example, should be received by each. Set out also whether your executor should be paid, and what's the amount to be given. Also name an alternative executor in the event that your first choice dies or becomes incapacitated.
4. Validate your will. In order for your will to be valid, you will need to, as the testator, sign it in the presence of two witnesses who are non-beneficiaries of your estate. The witnesses in turn will put their signatures on the will in the presence of you and each other. It doesn't hurt to put your initials on all the pages of your will.
5. Do checks. Go over the will to ensure that the names of everyone on it is legible and correct dates are given.
6. Put away the will in a safe place. Put your will in a safe place and tell only your elected executor where it is stored.