Speaking from the grave - The importance of making a will

A last will and testament is a legal document that is speaking for you from the grave. This does not mean that your ghost is up and about telling anyone what to do with your estate. The document simply outlines what should happen to your assets after your death. This includes, but is not limited to, real estate property, possessions, money, who should be guardian for your children, and in some instances, how you wish to be buried.

Having a will is very important, particularly in Jamaica where the consequences of not having a will are quite serious. In this case, the Administrator General will divide your property, regardless of your intended wishes. Outside of a written will, The Intestate's (Testate and Property Charges) Act dictates how your property will be distributed, and as such you will have no say in who gets a share in your estate.

Each family's dynamic is different, and as such a will minimises family conflicts between the beneficiaries. For instance, the law allows a spouse to benefit from at least half of the deceased's estate; however, that spouse may not have had a good relationship with the said deceased for years. This can create friction, and even fights, which sometimes lasts a lifetime between persons who are not family members, but who had a close relationship with the deceased, and those who are related to the deceased but did not share a good relationship with him/her.

A will, therefore, minimises any potential family strife and ensures that your assets will be divided among your loved ones according to your wishes and not according to the act.

Another reason why it is important to have a will is that your executor(s) has the power to act immediately after your death.

When a person dies intestate (not having made a will before one dies), an application for Letters of Administration will have to be made, and when that grant is issued, an administrator is empowered to act on behalf of the estate. However, where a will has been made, an executor has the power to act immediately after your death, and as such can protect the assets in the estate.

Another important reason to create a will is that the beneficiaries generally find it easier to locate the assets. While it may be easy to identify assets such as house, land and motor vehicles, it is a lot more difficult to be made aware of stocks, bank accounts, etc., that are less visible and may require the direct knowledge of the deceased. A well-prepared will usually outlines these assets, and as such, it is a lot easier to locate and ultimately transfer upon receiving the grant of probate.

Lastly, it is also a lot easier and quicker to obtain a Grant of Probate versus a Grant of Letters of Administration. The fact that the will appoints an executor means that the executor(s) can automatically make the application for a grant of probate. When a person dies intestate the beneficiary will have to first satisfy the Administrator General of their right to make the application.