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What Lies Ahead

W_March Issue 45

The benefits of will writing

Making your will is one of the most important things you will ever do, as without one, your loved ones’ future could be at risk of financial uncertainty, emotional turmoil or even long drawn-out disputes.

Also, after several years of working, you would have amassed some personal assets such as liquid funds, investments and properties. Hence in the event of an unforeseen occurrence, your assets might be in a mess as they will not automatically pass on to your beneficiaries as much as you wish.

According to Jason Tay from Tay Ibrahim & Partners Advocates & Solicitors, a will would not help you to transfer your property but it will help to ensure that the wishes of the deceased are carried out accordingly. In the event that the deceased has properties, by drafting a will, the deceased would be able to decide on the designation of the properties. For example, if the deceased has a few properties, the deceased could decide which property is to be transferred and / or given to which beneficiary(ies).

The Importance of Estate Planning    

W2Tay further explains that if one dies without a will, the estate will be distributed in accordance to the Law. And the Law only provides for the distribution of the deceased’s estate amongst his / her direct family members. It does not provide for co-habitees and / or others whom are not legally related to the deceased. As such in certain circumstances, the intentions and / or wishes of the deceased is seldom fulfilled.

As shared by Lai Chee Hoe from Chee Hoe Associates, a Grant of Probate arising from a will is meant to spell out the intention of the testator clearly. In this regard, it eases the process of identifying the correct property, portion of the property for distribution and execution of documents for transfer of such property.

A will is also an effective way in preventing inheritance disputes. With a will, the deceased could offer a full and proper consideration on how his / her dependents are going to be provided for after his / her death. Since even with the existence of a will, there are still grounds to challenge it, for instance mental incapacity of the testator, forged signature, forged will etc, the importance of writing a will properly according to the prescribed procedures cannot be overemphasised.

Besides that, it is often difficult and expensive to administer an estate that has not been planned well, and many times the poorly planned estate must pay taxes that could have been minimised or avoided altogether with proper planning. Considering the time and effort you have spent accumulating your assets and the goals you may have for your children or other intended beneficiaries, your estate plan deserves careful planning with the implementation of a properly written will.

The Process of Will Writing

W3The initial step in the will writing process is to list down all your assets. For this you have to include all the details of bank accounts, properties, businesses, vehicles, jewellery, antiques or other valuables, investments such as shares or other instruments. Also, you need to gather all the supporting documents and place them together in an easy-to-retrieve file or folder.

When it comes to will writing, it is best to use the services of a professional will writing service or a legal firm specialising in probate matters. You would not want to be stingy on something this important, as a will is needed in order for the transfer and vesting of assets and properties to be legally recognised.

According to the Deputy CEO of Rockwills Trustee Berhad, Azhar Iskandar Hew, the will can specify which property is to be inherited by which beneficiary and one of the tax advantages is that the stamp duty is at RM10 per title under the Stamp Act 1949. However distribution of the property can only be done once the Grant of Probate, debts and liabilities of the estate has been paid.

While the contents of the will clearly states the intention and instructions of the testator, the will must be signed by the testator in the presence of two witnesses, who must also sign it. The two witnesses must not be chosen from among the beneficiaries or the spouses of these beneficiaries. In addition, it is best for the testator to look into the matters stated in the following table.

To prevent the unintended consequences of intestacy, this can be done by writing a will where assets are given to specific beneficiaries and also to name substitute beneficiaries to them. It is also important to have a residual clause in the will to give away any assets that have not been specifically mentioned in the will to be given to a particular beneficiary.

Next, the will needs to be kept in a safe place. However, not so safe to the point where the beneficiaries cannot find it! There will be no point at all to the exercise if no one can locate the physical will once someone has passed on. Make sure you tell your beneficiaries where the will is located.

Lastly, for those who have yet to take this all-important step, make it your personal goal to get started on will writing right away. Although there are other methods to distribute the assets such as setting up a trust etc, ultimately, each method suits different kinds of situation. As such, the best way to avoid unintended consequences is to always seek legal advice, understand the possibilities of dispute and take appropriate action to minimise it.

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