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.
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