Writing a will can be an overwhelming and complicated process. Nevertheless, having a legally valid will ensures that your estate is dealt with fairly and promptly following your death, minimising stress and making the grieving process more manageable for your loved ones. Along with deciding who will benefit from your estate, you must appoint an executor - somebody responsible for carrying out your instructions - and two witnesses to make the will valid. Read on to learn more about the individuals involved in the will-writing process.
The executor of a will is responsible for ensuring that the deceased's final wishes are fulfilled. This involves carrying out the instructions left in the will and handling the testator’s estate, ensuring that the beneficiaries receive what they are entitled to. Essentially, the executor acts as the liaison between the deceased and the legal system, overseeing various matters pertaining to the estate during probate proceedings. They are also responsible for handling any outstanding debts and financial obligations.
All things considered, being the executor of a will is a significant responsibility. As such, they should not only be somebody you trust wholeheartedly to safeguard your intentions following your death, but you should be confident that they are able to handle the complexities of probate. It's important to have a candid conversation with the person you are considering as the executor before naming them in your will to ensure they fully understand what will be expected of them.
Your beneficiaries are individuals and organisations who will receive shares of your estate following your death, as outlined in your will. Your will must specify who the beneficiaries are and what assets they are entitled to inherit. As the testator, you can choose whomever you please as your beneficiaries. However, they are most likely to be:
Immediate family members, including spouses, children, grandchildren, parents and siblings.
Extended family members, such as uncles, aunts, cousins, nieces and nephews.
Close friends.
Charities or nonprofit organisations you wish to support financially.
Trusts, which are legal arrangements with the purpose of holding or managing assets on behalf of designated beneficiaries.
When writing your will, you must clearly and comprehensively state who you want your beneficiaries to be to avoid confusion and potential disputes after your passing.
Missing beneficiaries are individuals who have been named in a will but cannot be located or identified when the time comes to distribute the assets at the end of the probate process. This may be due to several reasons, such as a loss of contact, name changes and lack of information. Tracing and locating missing beneficiaries can be time-consuming and costly, involving professionals such as genealogists and probate researchers. However, you can cover these costs by investing in will insurance, which will also provide coverage against fraud allegations and creditor claims, protecting the executor from personal liability.
Before your will can be considered legally valid, you must sign it in the presence of two witnesses. Along with being a legal obligation, witnesses lessen the likelihood of your will being challenged in terms of legitimacy. There are numerous guidelines regarding witnesses. Firstly, both witnesses must be at least 18 years of age and mentally competent. In other words, they must possess the mental capacity necessary to understand their actions and be able to testify to yours accurately. While it is not a legal requirement, it is generally recommended to avoid naming beneficiaries as witnesses, as this will void their inheritance. You can read more about witnesses in this article.
Probate can be a complex and lengthy process, with specific legal requirements that can be difficult to understand. A lawyer with experience in probate can provide essential guidance, ensuring that the process is carried out correctly and complies with the law. Your lawyer can also assist in validating the authenticity of your will, ensuring it meets the legal requirements to minimise the risk of complications following your death. As much as we all want the probate process to be as smooth and straightforward as possible, beneficiaries or other interested parties sometimes contest the will's validity or raise other legal challenges. In this case, an experienced lawyer will be able to handle disputes and defend the will's validity in court if necessary.