Do you have a valid Will?
Requirements for a valid Will are:
1.The will maker is over the age of eighteen (18) years old.
2. Has testamentary capacity and understands and intends the document to take effect after their death (testamentary intention).
A valid Will must also be:
- In writing, (but not necessarily on paper or in the form of a document).
- Signed by the will maker on every page.
- Also signed by two witnesses who are over eighteen (18) years old and who sign at the same time as you & in the presence of each other.
A testator (the person making the Will) is said to have testamentary intention when at the time the document is completed or signed they understood that the document is to be effective after their death. A testator only has capacity to make a Will if they are of sound mind and understanding.
Your Will can be a simple Statement of what you want. However you must clearly state to whom your assets and belongings are to go to and name someone to carry out your wishes (your Executor). The Will should state that it revokes all previous Wills. You will also need a Clause dealing with the residue, that is everything you haven’t specifically mentioned. If you don’t do this anything you forget will be dealt with under the Intestacy laws.
The Will should appoint someone as Executor whose role is to administer the estate. An Executor is responsible for:
- Finding the Will.
- Arranging for disposal of the body.
- Getting the Death Certificate from the Registry of Births, Deaths and Marriages.
- Ascertaining the deceased’s assets and liabilities.
- Assessing the value of the deceased’s assets.
- Obtaining Probate if required.
- Paying the deceased’s debts, income tax, duties and funeral expenses.
- Distributing the assets according to the terms of the Will.
A grant of Probate can only be made if there is a Will.
Probate is an Order from the Supreme Court stating that the Will has been approved to be the last valid Will of the deceased.
Probate means proof of the Will. Once the Will has been proven to the satisfaction of the Court staff or a Judge Probate is granted to the Executor or Substitute Executor. Probate authorises the Executor to administer the estate by selling assets and collecting funds to distribute the estate in accordance with the Will.
Probate will always be necessary if the deceased died owning real estate unless it is owned as joint tenants whereby the right to title immediately transfers to the joint owner.
Letters of Administration
Where no will (or valid will) exists application need to be made to the Supreme Court for letters of Administration.
The applicant is usually a family member of the deceased and when appointed is responsible for the administration of the estate in a way similar to an executor.
The estate is then administered & distributed in accordance with the laws of intestacy which have changed as at March 2010.