Writing a Will is not something most people enjoy doing. However, it is an important and responsible thing to do. This article considers some of the points you should consider when writing your Will.
What Is A Will?
When correctly drafted, a Will is a legal document that provides those who are left behind with clarity on what your wishes are for your assets and children. There are different forms of Will and what is acceptable in one jurisdiction may not be valid in another.
What Is Your Estate?
Your estate is usually described as everything you own and everything you owe. Knowing what is in your estate is important because if something is not in your estate you cannot gift it in your Will. There are a few things you may consider to be yours but which are not included in your estate. Examples include joint bank accounts in many offshore jurisdictions. Property in the UK held as joint tenants. Assets held in Trust such as pensions, life assurance, and investments. Separate arrangements are made for these assets.
The Rules In Your Home Country
The starting point when preparing any will or guardianship document is to consider what you currently have in place. This may not be something you have put together yourself. Most countries have laws detailing what will happen to a person’s assets and children in the event of their death. These are the default settings. For many people who live in their home country and have no foreign assets and a simple family structure, this may be a suitable solution.
For some people, this will reveal they have limited options when it comes to dictating what happens to their assets on their death. For those with greater testamentary freedom, there is more to consider.
The Rules Where You Have Assets or Where You Are Living
Expatriates often have assets in more than one jurisdiction. This means their estates are usually subject to private international law and any double taxation treaties between their home country and the country where the assets are sited. There are often different concepts and processes to go through.
For example, in England, an executor is appointed in the Will. They act as the agent of the deceased, gathering together assets, paying bills, settling taxes with the authorities, and finally distributing the assets according to the Will. Many civil law jurisdictions (Spain, France, etc) do not have this position.
Sometimes the same words are used to mean different things. In the UAE it is possible to obtain a certificate of domicile, this states where you are resident. However, the term domicile in English law has a different meaning which is more aligned to your ancestral roots and future intentions.
What Do You Want To Achieve With Your Will?
Many of my clients are looking for peace of mind and security for their families should they unexpectedly pass away. Others want to make sure a family heirloom is given to the right relative or tax is minimized on their estate.
For many making sure their spouse is the major beneficiary of their estate is a key goal. Then if they die their children to benefit equally.
Some thought is needed to decide what would you want to happen to your assets in the unlikely and tragic situation where you and all your immediate family were to die. Often in these cases, the default beneficiaries are members of your extended family, friends or charities supporting causes you are passionate about.
Who Will Look After Your Children?
As expatriates, we often lack the benefit of family living close by. Where young children are involved it is important to have an interim guardian appointed to look after them in the event that both parents pass way. This trusted person takes on parental responsibility for the children until such time as the legal guardians (appointed in your Will or by the courts where there is no Will or Guardianship Deed). Interim guardians are appointed via the local courts, non-Muslims can also use the Dubai International Financial Centre (DIFC).
Accepting the appointment as a permanent guardian is a significant responsibility. Where the child is very young, the role can last decades. Before approaching a prospective candidate, please consider factors such as their lifestyle, relationship with your child, their age, health and energy levels. For expats, their location is also important when family members are located around the world.
For those with testamentary freedom, which applies to many Common Law jurisdictions, such as commonwealth countries. There is the possibility to gift assets or financial amounts to individuals or organisations such as charities, clubs and societies.
Whether to Use A Professional Or Not
A Will or Guardianship document is part of a package of measures to protect your family against the impact of your death. It is essential it represents your wishes and is legally valid. Some jurisdictions accept Wills prepare by testators without advice whilst others require the input of a person professionally qualified to draft Wills.
Expatriate estates are rarely straightforward. There may be assets in multiple jurisdictions, children from previous relationships or spouses from different countries. In these common situations, advice is recommended.
Clearly, proper professional advice will cost money. However, this is a family protection matter. When a person has limited knowledge of a subject or the ‘product’ cannot be seen (as is the case with a service like a Will), the knee jerk reaction is to define value for money by using price. However by way of analogy, if you were buying a crash helmet would you opt for the cheapest one or one that has passed rigorous testing? Qualifications and experience are important.
Many professional bodies have ethical standards that members must adhere to so a good place to start would be checking a Will Writer or Lawyer’s credentials with their professional body.