Why make a will?
Posted: Monday, July 5, 2004
Most people never think of making a Will. In the absence of a Will, whenever the unexpected or untimely passing occurs, the family left behind groans with regret as they are unclear as to how the deceased wanted to have his or her assets distributed amongst members of the family, if at all. If however there is a Will left by the deceased it often makes an Attorney's task easier to deal with the Probate application. A Will should be prepared by a person familiar with Probate Law. An Attorney-at-Law would be the best choice. However other persons do prepare Wills as well. Some of the basic guidelines to be followed in will preparation are set out in the Wills and Probate Ordinance Chapter 8:02.
In a Will the deceased or "Testator" can appoint up to four executors. An executor is the person who will look after the carrying out of the Testator's wishes upon death, and who liaises with Attorneys who are doing the Probate Application to provide the necessary instructions and to actually go about the business of distributing the assets. If the executors die or do not obtain probate then a grant of Letters of Administration with the Will annexed would be made to the next of kin of the deceased. The Testator should choose wisely in naming his or her Testator as they play a key role in administering the estate. The maker of the Will must be 21 years old and over. In preparing the Will it must be witnessed by two independent persons who are not beneficiaries under same. The witnesses must sign the Will in the presence of the Testator who must also sign in their presence and in the presence of each other. A Will should have a residuary clause to take into account any other assets which the Testator may acquire between the date of the Will and his or her death.
If there are several Wills, the one with the latest date is the valid one, since a Will normally states that it revokes all former Wills made by the Testator. Please note that a Will can be revoked by subsequent marriage or destruction. One of the advantages the Testator has in making a Will is that he is able to ensure that his beneficiaries get exactly what he wishes. For example in a family of several children, the Testator may intend to benefit one more than the others, for example if that child was helpful in looking after him or her in his or her last years. In other ways, if a Testator wishes to bestow a gift on any other person e.g. a common law wife or children born out of wedlock he may also do so by will. Another situation in which it will be advantageous to have a Will is where there are children born both in an and out of marriage or where the deceased had a relationship with both a spouse and cohabitant. The Testator has the choice of leaving his estate as he desires prior to death.
If a person dies without leaving a Will the deceased dies "intestate" and the laws of Intestacy under the Administration of Estates Ordinance Chapter 8:01 and the Part VIII of the Succession Act and the Distribution of Estates Act 2000 will apply. They stipulate basically that when a person dies intestate one half of their estate is distributed to his/her spouse and the other half to the children of the deceased. Unlike cases where a Will is made the application for the administration of the estate of a deceased who dies intestate is known as Letters of Administration. The person who can apply for a grant of Letters of Administration is usually the spouse or next of kin. The Distribution of Estates Act 2000 also gives cohabitants rights to the intestate's estate. They are actually placed in the shoes of a spouse with exactly the same rights as if there is no surviving spouse. If there is a surviving spouse and cohabitant and at the time of death the intestate and the spouse are living separate and apart, the cohabitant is only entitled to such part of the estate as was acquired during the time of cohabitation. This is of course subject to the rights of the surviving spouse and children.
The fees for Probate application or for letters of Administration are situated in Legal Notice No 77 of 1997 under the Legal Profession Act 1986. Please note that your Attorney is under a duty to charge these fees, plus disbursements out of pocket expenses.
For small estates where the value does not exceed $4,800 the applicant can make an over the counter application at the Probate Registry without an Attorney's assistance.
If you wish to prepare a Will and need to consult an Attorney-at-Law to do so you would need to supply the following documents:
1) An original death certificate
2) Copies of deeds of properties owned by the deceased
3) Copies of certificates of insurance proceeds, bank statements or other security documents
4) A list of other assets owned by the deceased with proper identification numbers and documentary evidence is available.
The Attorney will advise you of any other documents needed.
Joan D A Byrne, Attorney-at-Law
Trinidad and Tobago Law Association
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