Ask an Expert: Legal Advice on Writing a Will
by Karen Rollins Jan 7, 2019
Did you know Aretha Franklin, Amy Winehouse, Prince and even US President Abraham Lincoln all died without making a will?
Many people die without leaving instructions on what should be done with their assets because they aren’t prepared, or they think it’s morbid to think about death.
But if it’s not clear who you want to get what when you die, it may cost your family a lot of time and money to sort out. And if you have no close relatives, the State may end up with everything you had, rather than an organisation or charity that was close to your heart.
Yello asked Barbadian lawyer Sandra Browne to demystify the will writing process and to answer some FAQs about making a will.
What is a will?
A will is a document that you make while you’re alive about what you want to happen with your property and other assets after you have passed on.
It’s important to note that the will doesn’t benefit anyone while the person making it is alive, so you can still dispose of your property in any way during your lifetime. For this reason, a will is said to be ambulatory because until the person making it dies, it has no effect.
A will is not considered valid unless it is in writing. It must be signed or executed by the person making it and witnessed by two independent persons who are not related to any of the beneficiaries and who are not beneficiaries themselves. If these conditions are not met the will is deemed null and void.
In Barbados, a male making a will is known as the Testator and a female is called a Testatrix.
Why should someone write a will?
A will ensures that your assets will be taken care of according to your wishes.
Making a will also saves time when it comes to administering and distributing your assets after your death which is known as probate.
In Barbados, once there is a will and the normal checks have been made at the Supreme Court Registry, it takes about three months for a Grant of Probate to be issued.
If you don’t write a will what could happen to your assets?
If you don’t make a will, which is referred to as having died ‘intestate’, your property and assets will be divided according to the Succession Act. Letters of Administration will be issued and that can take nine months or more.
So, according to the law, if you leave a spouse and no children or next of kin, your spouse will inherit the whole estate. Spouse in this context refers to your wife or husband, or in the instance of common law marriage, then the spouse is a single man or single woman living with you for a period of five years or more.
If you’re married but living with someone other than your wife/ husband, the law does not consider this person to be your spouse and they will not be entitled to anything.
If you die leaving a spouse and one child, then your spouse takes two thirds of your estate and the remaining third goes to your child. However, if you have more than one child and a spouse, your spouse gets a third of your estate and the children share in the remaining two thirds equally.
If you don’t have a spouse or any children but your parents are alive then they share in your estate equally, if only one parent is alive, then that parent takes it all.
If you die and you don’t have a spouse, children or parents, but you have siblings, they will share in your estate equally. If you don’t have any of those relatives, then the person who is your closest blood relative will inherit everything.
There are also quite a few other permutations and that’s why it can take a bit of time if you don’t make a will.
It can also become costly if your family have to try and prove their entitlement through the court. Of course, all of this can be avoided if you make a will.
What is the process once you instruct a lawyer to make a will?
I usually start by asking who a person wants to be in charge of their estate when they die – that person is called the executor. You can have up to four executors, but most people have one or two. The executor is the person who will probate the will and administer the estate according to the wishes of the testator/testatrix.
Then I find out if they have any children under the age of 18 because in the will you can name specific people as guardians. We also advise that if you have a spouse you should make provision for them in the will, even if you don’t get on, especially if there are minors involved.
Then we go through all the assets and they decide how they want people to benefit.
We also have a residuary clause which is there, for instance, in case the person wins the lottery. Then they can name someone who could benefit under those circumstances.
If you have children who are going to inherit, but they die before you, you can also add a clause whereby their children get that person’s share of your estate.
How long does it take to create the will?
The time it takes depends on the person’s assets and whether they have shares, pensions etc. But usually once I receive the instructions to get the will prepared and it’s been signed, I can process it within about three days.
It’s then lodged in the depository at the Supreme Court Registry where it stays for safekeeping.
When the person dies, and a death certificate has been issued, the will is opened and an attorney prepares all the necessary documents. Checks will also be made to ascertain whether other wills were made, although only the last one made before your death is relevant.
How much does it cost to get a will written?
The cost varies depending on how complicated the will is. I think most lawyers, if it is a simple will, won’t go beyond a fee of $350-$400 (BBD). But once it becomes more complicated the cost goes up.
What if you want to change your will?
You can change your will as many times as you want but you’ll have to pay a fee each time.
If a change is minor, for instance you just want to add the name of another executor or substitute one name for another, instead of having a new will written an attorney can prepare a codicil to your last will which must be signed by the person making the will and witnessed.
When the codicil is lodged in the Registry, it’s attached to the will to which it refers, so they can be read together.
If you need to make several changes, it’s best to have a completely new will prepared.
If you write your own will is it still legal?
Yes, that document is referred to as a ‘Holograph Will’. But it is not enough to just tell someone what you want to give them when you die, you must put it in writing and it must still be dated and signed and independently witnessed.
However, I would advise instructing a lawyer to prepare the will so that it can be prepared correctly and lodged with the Registry.
Some legal jargon explained:
Executor – the person you have named in the will to distribute your assets.
Intestate – means a person died without a valid will.
Holograph will – a written will that was not compiled by a lawyer.
Letters Testamentary – a legal document authorising the executor of a will to take control of a deceased person’s estate.
Letters of Administration – authority to administer the estate of someone who has died without making a will.
Probate – the process by which the will is officially recognised as legal.
Testate – means a person died with a valid will.
Testator – a man who has made a will.
Testatrix – a woman who has made a will.
If you want legal advice search for a local lawyer on Find Yello Barbados – https://www.findyello.com/barbados/lawyers