The Sunday Mail
Hunt for Greatness
Arthur Marara
A will is one of the most important documents that you will ever write during your lifetime. This point cannot be overemphasised. There must be serious care to be put into how you write your own will. This is why this particular article is going to focus on the steps that you need to take when setting out to do your will. This will be helpful even if you are using an attorney to draw up your will. It is the client who provides the attorney with the information. The duty of the attorney among others is to format your wishes into a document that is legally acceptable. I will also take you through some of the things that you need to consider when making your will.
STEPS TO HELP YOU PREPARE YOUR WILL
What is important to consider when doing Estate Planning is the question of “What is your estate?” Your estate is comprised of your assets and your liabilities. When you pass on, a new person emerges in terms of the law, and that person is called an “Estate”. Because the estate is a person it is liable for paying Estate Duty. The question that you need to ask at this stage is what is your estate comprised of. This brings me to the point below.
Gather and review all the documents relating to your estate. This perhaps will apply to people who have bigger estates, but for every person who owns some type of property you need to have this habit of keeping documents connected to your estate.
Create a list of key documents such as:
Birth, death, marriage & divorce certificates;
Title Deeds & mortgages;
Bank account numbers;
Investment portfolio account numbers;
Insurance policy numbers;
Funeral plans and burial information. Some people would have purchased their graves well in advance so this fact needs to be known. Funeral plans also enable your family to know the extent to which your funeral costs are covered.
List your advisors
Making your will may involve a lot of people though they may not necessarily know each other. These people need to be listed, and their whereabouts also known in particular their company names, contact numbers, and addresses. List your advisors such as your banker, lawyer, accountant, investment dealer, and insurance agent. There is no way that your family or beneficiaries can benefit if the details of these professionals are not found.
Ensure that your family and executor(s) know where this information is located. It may so happen that some of the information may be needed soon after your death. Immediately, on death the question that comes to mind is connected to your funeral in particular burial or cremation. Things we take for granted like burial place, and type of burial may result in a stand-off amongst the survivors hence the need to ensure that these things are covered in terms of your will, and also that the key people in the administration of your Estate have this information close by. It is not everything that has to be kept secret in the will, it may have to be disclosed to the executor so that he or she can start their work with ease when you die.
Considerations when making your will
There are many things that you need to consider when making your will. This is critical when you are writing the will on your own. In the hands of a professional attorney, you will be guided on what you need to bring.
Executor
Who will you select as executor and, if you wish, co-executor?
It is best to appoint alternate executors in the event that one of the executors predeceases you or is unable to act for one reason or another. There are many instances when a will is left without an executor due to the fact that the other executor would be deceased. In such a case, the Master will have to appoint an executor for the Will. Before you can appoint someone as an executor, speak to them so that they agree to act.
Bequests
Do you want to leave bequests? Bequests are specific items of personal property (such as a car, jewellery, art, furs, etc.) or a sum of money that you wish to leave to a specific person.
To whom do you wish to leave the remainder of your estate? Spouse? Children? Charities? Is it to go directly or through a trust? If it is being left to children, are they to receive it immediately or at some future time?
In the event that children are minors, you may want to specify a certain age.
How do you want your estate distributed?
What happens if you are predeceased by your child?
If one of your children has died, do you want his or her children to receive that share, or do you want it to go to your other children?
Guardianship
Who will you name as a guardian for dependent children or disabled adult children?
You need to ensure the guardian agrees to act. The nomination should not come as a surprise.
Second Marriage
It may also happen that you may be in your second marriage. If you are in a second marriage and both of you have children from previous marriages you may wish to consider the available options. For example, the remainder of your estate can go to:
(a) your spouse absolutely;
(b) your children absolutely;
(c) your spouse for his or her use while alive, and then, after your spouse dies, to your children;
(d) your children and the children of your spouse.
It is very important that you and your spouse discuss the various options and agree upon your plans.
In the event that a minor (child, grandchild, niece or nephew) inherits a share of your estate, who do you want to receive their share?
If one of your beneficiaries is dead, who do you want to receive their share?
Durable Power of Attorney?
This is not very common in Zimbabwe, but you may need to have it.
Durable power of attorney is usually used in the event of a principal’s illness or disability, or when the principal can’t be present to sign necessary legal documents for financial transactions.
When you are no longer in a position to make decisions for yourself for example you go into a coma, your affairs still need to be managed because you will still be alive, and decisions will still need to be made.
Are you going to have a Power of Attorney prepared at the same time you make your will? If so you want to create room for this please consider the following:
(a) Who do you want to act on your behalf (this person is called your attorney)?
(b) Will the attorney’s power be limited and specific or general?
(c) Do you want the attorney to have power to act if you should become incompetent?
(d) Do you want to name somebody in your Power of Attorney to make decisions about your personal care if you become incapacitated?
(e) If you include a Power of Attorney for Personal Care, will you name the same person that is handling your financial affairs?
It is my hope that this conversation has assisted you reflect on the need and importance of having a will in place and most importantly the things that you need to look out for when making your will.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate and family law attorney. As an attorney, he has worked over the years on matrimonial and inheritance matters including but not limited to drafting wills, and preparing, and lodging family trusts. Follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
