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Wednesday, January 29, 2014

Why Wills – The Problem of Intestacy


Many people are dutiful in writing wills. But they often do so under the wrong assumptions and without an understanding of the chief benefits of writing a will. Namely, many people assume that writing a will is the only way to manage and distribute one’s possessions after death. But this is not the case. As mentioned in another blog topic, there are also trusts. However, if you do not create a trust or will, this does not mean that your possessions are simply left to no one. Instead, it means that you have died intestate and have lost the right to choose who you prefer to get your possessions. In intestacy, the state assumes control of your possessions and will distribute the possessions based on predetermined rules that often are contrary to what you would have elected to do prior to your death. Maintaining control, though, is not the only benefit to writing a will as I will address in this blog entry.

What is a Will?

First, it is important to understand what rights are associated with writing a will. A will is a legal instrument that permits a person to make decisions on how his possessions will be managed and distributed after his death. This is a key aspect of a will. It has no effect until the person who makes the will, called a testator, is dead. In effect, a will has no legal effect when a person is alive (see blog entry – Trusts: An Alternative to Wills).

Benefits of a Will – Avoid Intestate Succession

     In Jamaica,a will gives you control over the management and distribution of your possessions. If you do not create a will, then you lose the right to choose who gets your possessions and the state will determine how your possessions are distributed. The process of the state determining how possessions of an estate are distributed is called intestate succession or the result of dying intestate. Please note that a person can also die partially intestate because the will does not dispose of all of his property or personal belongings. And this is where the problem of intestacy lies. Briefly, intestate rules in Jamaica typically provide that the surviving spouse and children receive the entire estate in varying proportions. In the event of partial intestacy, the rules of succession will be applied to the property or personal belonging that has not been assigned a specific beneficiary. This means that, again, the spouse or children will be the default beneficiaries even though you may have provided for them in other parts of the will. Thus, if you know that you would like to leave specific items in your estate to friends, distant relatives or charitable organizations, it is critical that you create a will that specifies these preferred persons or entities as beneficiaries.

Benefits of a Will – Minimize Contests over Your Possessions

       A properly drafted will reduce the likelihood of individuals making competing claims for items in your estate and enable a timely distribution of the estate to desired beneficiaries. You will be able to best preserve your estate by determining who stands to benefit from a distribution of possessions. In effect, this is another aspect of how a will allows you to control what happens to your possessions after your death.   

Benefits of a Will – Maximize Access

       A will can be revised an unlimited amount of times while your alive. A will is only final at your death. As a result, it is important that you draft a will and work with a lawyer before you reach an old age or are beset with sickness. You just have to take the precaution of destroying an old will to eliminate the possibility of it being considered a “draft” or earlier “version” of the actual will. But a lawyer will be able to assist you in creating language in your will to ensure that it is held as the actual will during an estate review process administered by the court called probate.

Benefits of a Will – Cost Effective Method of Estate Planning

A will is a cost effective way to mange and distribute your possessions because you do not need a lawyer to come up with a draft of a simple will. Anybody can write a will as long as the person is in good health possessing all his or her mental faculties. However, it is recommended that you work with a lawyer to draft a will, especially those who are deciding how to distribute possessions from a complex estate. As an expert in estate planning, a lawyer can assist you in identifying and achieving all of your estate planning goals and ensure that there are no problems with your will upon your death. But the fact that you can brainstorm and draft a will on your own will reduce costs in the event that you meet with a lawyer to finalize and revise your will.

Benefits of a Will – Use it to Create a Trust

A will is a versatile document because it is one way that you can create a trust. You can create something called a testamentary trust, i.e., a trust that is brought into existence by the terms of a will. When a living trust (see blog – Trusts: An Alternative to Wills) exists a testamentary trust often functions as a pour over will that places the items in the will under the authority of the preexisting trust. In other circumstances, you could use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify. If there are multiple children you would create something called a “pot trust” that allows the trustee to function as a guardian who determines the needs of each child and makes distributions accordingly under the trust. These above mentioned uses of a trust created by a will are a form of estate planning that makes it clear why it is prudent to work with a lawyer to ensure that the distributions are what you intend.

Benefits of a Will – Name a Guardian

       A will is also a versatile document because it can be used to name a guardian for a child in the event that both parents are dead. A will is not just a mechanism to identify and distribute possessions to preferred beneficiaries. The guardian will manage the property until the child reaches the age of 18. More importantly, the court in Jamaica will honor your choice of guardian as opposed to selecting someone that you would not have selected if you were alive. A spouse is not an automatic guardian.

Requirements for a Valid Will

         In addition to possessing a sound mind and not being under the coercion of a third party, a will must feature key elements to be upheld as valid in a court of law. Namely, the will must be signed and dated by a person who is at least 18 and there must be two witnesses to the will. The witnesses must not be a beneficiary under the will. As a result, any bequests to a witness to a will are considered void under the applicable law. It is also worth noting that your will can be handwritten and only needs to be kept in a safe place. (A handwritten will is also known as a “holographic” will.) You do not have to register your will with a government agency.

Modification of a Will – Using Codicils

       You do not have to rewrite a will if you wish to modify it. You can write a document made after the will was written called a codicil that can modify specific parts of a will. However, if the codicil is completely inconsistent with the will, then it will revoke the prior will. Therefore, codicils must be consistent in some form. For example, you could add to the will or delete something from the will, in part, and still keep the will as the authoritative document. Be careful, though, because a codicil is not revoked if you revoke a will. You have to specifically account for each codicil as an independent document once you elect to create one. This means that you would have to destroy each codicil or otherwise account for it independent of what you do to the original will.

However, a codicil that is not attested to by two witnesses (similar to the formalities for a will) is not considered a valid codicil. Thus, codicils require the same formalities as wills and other documents that do not meet such requirements may in some circumstances by included in wills provided the following: (1) the documents must be in existence when the will is executed; (2) the will must refer to the document as being in existence when the will is executed; and (3) the document must be sufficiently identified in the will.

Administration of the Estate

       You should appoint an executor to administer your estate after your death. It is not required that you appoint an executor, but it is highly recommended. If you do not appoint an executor, then the court will appoint an administrator to manage and wind up your estate at the time of your death. An example of when an administrator will be appointed by the court is on the occasion of the executor named in the will dying before the person who created the will dies thereby leaving no named executor. An executor can also refuse to accept his duties and the court will then also have to appoint an administrator. Therefore you may want to designate more than one executor in your will to account for unforeseen circumstances or death of an executor. But remember that there is the following limitation: an executor can also be deemed unavailable when the executor is not over 18 or is otherwise incapacitated.

The key difference between the executor and the administrator is that an executor is granted authority and given title from the will whereas an administrator derives his title from the grant of letters of administration. Another difference is that anyone can be appointed an executor while an administrator is determined by existing statutes and rules of the court.

An executor or administrator performs a designated role which includes collecting and realizing assets, paying the debts owed by the deceased, and distributing the assets according to the will or as predetermined by laws of intestate succession.

If there is no will and a person dies intestate, a letter of administration is granted. A letter of administration is usually granted to a party that takes a beneficial interest in the estate. This will follow the law of intestacy. A letter of administration assures that the assets of the estate will be collected and realized and that the debts owed by the deceased are paid.


You do not have to understand the legal effect of your will for it to be valid provided that the formalities discussed above are met a will is deemed valid. This means that you do not have to understand the law of intestacy for it to take effect in the event of partial intestacy. It also means that a will can create unintended beneficiaries contrary to the intention of the testator. For example, you may think that only who you designated as a beneficiary stands to benefit from your will at your death. But, again, if you do not assign a specific item to a beneficiary this item will be assigned based on the predetermined succession rules of intestacy. And, in the event that it is not clear who a beneficiary is the court will only interpret the clear meaning of the words used in the will. As a result, it is critical that you work with a skilled attorney to ensure that a will accounts for the true intention of the testator. Hopefully, this blog entry will not only make you aware of the benefits of wills but also the benefit of working with a lawyer to ensure that all of your estate is accounted for and that you do not die intestate.

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