Common reasons why a Will fails and how to ensure your Will is well written
Writing a Will can be a stressful task that we tend to avoid or push to the bottom of the to-do list. Our Will states personal wishes as to how we’d like our estate to be distributed after we pass away. Once we have written our Wills we should be satisfied and fully confident that our estate will correctly be distributed according to our stated wishes.
However, there are reasons that we oversee or are not aware of when preparing and writing our Will that can cause it to fail. If a Will fails it means that it is not valid, and in effect, there is no Will – leaving our estate to be distributed under intestate laws. Sometimes only part of a Will fails, for example where back-up provisions have not been made for a situation where the main beneficiaries have all passed away.
Common problems you should be well informed of before preparing and writing your Will:
Different countries have different signing requirements to ensure that your Will is legally binding. You are the testator of your Will, and to validate your Will, you will need to sign it in the presence of witnesses or a notary public. As the name indicates, your witnesses must physically be present and watch you when you sign and date your Will, and they must then sign and date the Will in your presence – sounds simple, right? Unfortunately, many Wills fail because the testator and the witnesses signed with different dates.
Requirements for who you choose as a witness vary, depending on the country the Will covers. As a general rule of thumb, a witness should be over the age of 18 and sound of mind. A witness cannot benefit from the Will they are witnessing, so it would be wise to choose a witness who is not mentioned in the Will or even related to anyone mentioned in the Will.
Marriage revokes a Will automatically, so if you are writing your Will or have written a Will when single and you get married, this will revoke your Will and make it null and void.
If you are already engaged to be married, or if you are expecting or planning a proposal, you can write your Will in anticipation of the marriage, so that tying the knot does not revoke or change your Will. You must name your future spouse to be in the Will – so you cannot write a generic Will stating that it shall not be revoked if you ever decide to marry someone.
Whereas it is perfectly legal to write your own Will, no matter how simple you feel your estate is, writing your own Will can lead to tremendous probate issues, and your beneficiaries might have been better off if you had no Will at all.
Where young children are involved, or where there are assets or ties across borders, it is important to take advice from a professional, who can guide you and ensure that your Will is drafted to properly care for your loved ones.
Although a DIY Will is attractive to save on cost, it can be a risky approach and could leave your family with a financial and emotional upheave. Discussing your estate plan and wishes with professionals ensures that your legacy is preserved.
Only an original signed and dated Will is accepted by the probate courts. If you show up with a copy of a Will – even if it is a certified copy – chances are the courts will give you a timeframe to locate the original, and if this cannot be done within the deadline, the courts will rule that there is no Will, and proceed to apply intestate laws to your estate, meaning that your efforts were all for naught.
Any scribbles, markings or evidence of attachments, such as a paper clip mark or staple holes on your Will, can invalidate the entire Will. It is essential to keep your Will safe, clean and protected from any potential damage.
Location of your Will
The number one reason for a Will to fail is that no one can find it! If your Will is not found and presented to the probate courts within a relatively short timeframe, the courts will assume you did not leave one, and declare that you have died intestate – leaving it up to a predetermined set of laws to decide who gets to inherit your estate.
Don’t fall into this category by making sure that your estate planning documents are kept safe, but accessible.
Want to know where to store your Will? Read more…
Writing your Will is one of the most important things you can do, but it is important to keep in mind the formalities that you must comply with for your Will to be valid and go through probate successfully. Our team has the expertise and skills to assist you with writing your Wills and planning your estate.
Don’t hesitate and make the mistake that so many do who put off and avoid writing a Will, as you will only regret the opportunity you had to financially plan and make necessary provisions for your family and loved ones.
For both locals and expats in Hong Kong, having a Will is an especially important aspect of financial planning.
Expat Living HK spoke to our Phoenix Wills director, and Hong Kong-based expat of 16 years, Asa Candussi Wilkins, about all the important questions on the topic of Wills, estate planning and how a Will is necessary for financial planning for your future.
Because tomorrow is never promised- one of the most important things you can do for yourself and your loved ones is to write a Will and plan your estate. Estate planning laws differ internationally, however one rule that stands true is that if you do not have a Last Will and Testament, the Government will make one for you!
Without a Will, your assets and estate will be distributed according to the generic laws in your country of domicile – splitting your belongings between your next of kin; e.g. partner and children, and in some countries even factoring in parents or siblings.
What if this is not how you wish your estate to be distributed?
Well, this is one of the greatest reasons for and why it is important to write your Last Will and Testament- to ensure your exact wishes are carried out after you have passed.
Contact us to create your Will and have peace of mind that your estate is planned for and your family is well looked after.
For those doubtful of why a Will is necessary, we’ve put together a list of five good reasons Why You Need A Will?
A Will is a legally binding document that allows you to decide exactly how you’d like your estate to be handled and distributed after you have passed away. A Will puts you in control and allows you to choose who is entitled to benefit from your estate and what they will inherit.
Passing away without a Will, the laws of intestacy will decide who inherits your estate, which often could be against your wishes.
Appointing guardians to have parental responsibility of your children, if they are minors is one of the most important reasons why you’d need a Will. Any child under the age of 18 must have an adult who is responsible for them.
What were to happen if something happened to both parents? Absent a Will, if guardians are not appointed for your children, the family court would choose among family members to appoint your children to. For expats in Hong Kong, if no family members are present your children would be placed in an orphanage! It will then be upon the courts’ decision to decide who, if anyone, is best fit to care for them.
Having a Will allows you to appoint guardians you’d want to raise your children.
3 – Choose Executors
When choosing who will administer your estate make sure to appoint someone who is organised, that you trust and who is honest. The executors of your Will will make sure that all your affairs are in order, from bank accounts and bills to business affairs. Executors have an important role in executing your Will according to your wishes and thus, another important reason to have a Will- to ensure the wind up of your estate and affairs are left in good hands.
4 – Avoid Lengthy Probate
Even with a Will probate is no walk in the park and takes some time, as the purpose of probate is to administer your estate. Passing on without a Will, known as dying intestate, probate can be a nightmare as the court decides how to divide your estate without your known wishes! Having a Will speeds up the probate process and allows the court to administer your estate according to your wishes.
5 – Ease Grieving
Losing a loved one is an immensely difficult period. Wouldn’t you want to make grieving less difficult for your loved ones? Writing a Will avoids having loved ones to deal with lawyers and administration during a time of sadness.
Don’t let procrastination get in the way of having a Will. Avoid unwanted stress on your family and protect them during an emotional time. Talk to our team about will writing services and planning your estate in Hong Kong.