Guest post by Samuel G. Njenga
We all know we should make a will, but it’s one of those things that many of us never seem to get round to. We keep procrastinating. In fact, it’s estimated that one in three people die without ever having made one.
Making a will now prevents a financial headache for your family when you die. But not making a will may mean chaos and financial worry for your family or dependants after you've gone. Without one, you can't be sure that your money and property will be passed on according to your wishes.
If you die without a will (called dying intestate), the intestacy rules takes over your estate. This one largely depends on how fast the family can agree and decide on a successor and the probate process starts. I may not go through the process at this stage but it gets long and winding if no agreement comes forth from the supposed heirs. What will court cases and feuds, and awaiting court’s judgements.
A will that is not properly signed and witnessed is invalid. In Kenya, at least two witnesses are required. A witness does not need any special qualification or public standing but is merely witnessing your signature. However, they must not have any beneficial interest in the will as this could make the will invalid.
It is always wise to use an advocate to prepare your will just to ensure that it is valid, sufficient and is consistent.
It's sensible to review your will every few years and consider amending it or even writing a new one if there is a change in circumstances, such as if you get married, have children or get divorced. Changes to a will can be made by codicil – an addendum to the original will – or by revoking the old will and drawing up a new one. You can revoke a will by physically destroying it. If the change is relatively simple, you can write a codicil (a supplement or appendix to a will) and get it witnessed, and keep it with your existing will. But you should not alter the original will.
If you wish to make a new will, it should begin with a clause stating that it revokes all previous wills and codicils. If the changes are complicated, such as you remarry, it is better to seek legal advice on drawing up the new will.
Most wills are made up of cash legacies, bequests and the residue. You can leave cash to relatives, friends or charities – these are usually fixed sums to named individuals. You can also bequeath your possessions (including property) and treasured objects to whoever you wish.
What’s left after all the debts, tax and fees have been paid is the ‘residue’. This can be left to one person, or it can be shared out among several individuals.
If you share ownership with a spouse or partner, your worth is half its market value, less your share of the mortgage. Property can held in two ways - either as joint tenants or tenants in common as earlier explained.
If your property is held in a joint tenancy, your half of the property will pass to the surviving joint tenant automatically.
If your property is held in a tenancy in common, you can leave your share of property to someone else in your will. They will then become a tenant in common with the other owner of your property.
For children under 18, you should say who you wish to be their guardians if both parents die, and where the money will come from to look after them. This is usually made in the form of trusts.
If children inherit money and/or property, it is held in trust until they are 18 (or until they marry if earlier). If you don't specify how the trust should be managed, it will be dealt with according to the 'trustee laws of Kenya', which let the executors deal with the fund.
Who are executors?
Executors are people that carry out your wishes in accordance with your will. It's best practice to name more than one executor (or one executor and a substitute). These can be relatives, friends or even an attorney.
In most cases (unless your estate is particularly complex) lay executors are preferable. If they need professional help to administer your estate they can commission probate services.
Beneficiaries can act as executors.
It is possible to make a will without professional assistance (DIY), and many people do so successfully, but it is also very easy to make a mistake when writing the will or signing it, which can render it invalid or ambiguous.
NB: Make sure that your beneficiaries do not access the will before you kick the bucket. Some may decide to dispatch you to your maker faster than you intend to go if they deem you more valuable when dead as opposed to alive.
In the next post, we shall feature a raw example of a will.