Benefits of Writing a Will: What You Need to Know

A will is a written declaration of a person's intention in regard to the matters to be handled after his/her death, which include but are not limited to the distribution and/or disposal of his/her assets. The Last Will and Testament (read together with codicils, if any) must be the final valid version of a will that supersedes all previous versions of the will to be used for obtaining a grant of probate in court. The general terms to know are that the writer of a will is a Testator (a person dying leaving a will dies testate), the persons to receive the assets as stated in a will are Beneficiaries and the persons mentioned by a Testator in a will to be in charge of administering the Testator’s matters are the Executors.

A will is one of the few written documents that one should consider having when one starts to own assets, the benefits of making a will are as follows: -

TERMS & CONDITIONS ACCORDING TO TESTATOR’S WISHES

Special personal terms and conditions can be included by a Testator in the will, which will be applicable after death if not inconsistent with the laws of the country. The said special terms and conditions include, but are not limited to setting guardianship and custody of minor children, parental care and/or pet care, preferred burial procedures and methods of distribution to be followed by Executors.

ABLE TO IDENTIFY AND LOCATE IMPORTANT ASSETS

In this era of continuous advancement in technology, new complex versions of assets are created, and physical documents are gradually being replaced by paperless softcopies or data in the computer. Should Executors be required to obtain documents and/or information of the assets and liabilities of a Testator including but not limited to complex properties, and also if to obtain through paperless softcopies or computerised data, there must be information for the Executors to know the existence of such assets and liabilities and also ample details to simplify or make easy the method to locate the documents or find the persons in-charge of the management of the said assets and/or liabilities.

Such information and ample details can be inserted by the Testator in the will to ease the job of the Executors instead of causing the Executors trouble searching around the house or in the virtual/social accounts to know and list down all the assets and liabilities of the Testator.

RIGHTS TO CHOOSE TRUSTEE(S) AND EXECUTOR(S)

A Testator may appoint a trusted friend, relative and/or corporation to be the Testator’s Executor(s) for managing the distribution of the Testator’s assets by way of inserting the Executor(s) details in the Testator’s will. This is a crucial benefit because if the Testator chooses a responsible and rightful Executor(s) to manage the Testator’s estate after the Testator’s death, the Testator’s expenses will be paid off rightfully, and the Beneficiaries will be able to inherit the assets smoothly after the Testator’s death. If the Testator dies intestate (without a will), the Beneficiaries may potentially face loss, trouble and/or conflict in handling the distribution of the Testator’s assets.

Besides, the Testator may also appoint joint executors of up to four (4) persons in the event the Testator intends to ensure ample protection of the Testator’s estate for distribution to the Beneficiaries.

RIGHTS TO CHOOSE BENEFICIARY(IES) AND SET DISTRIBUTION PORTION

A Testator has the right to choose Beneficiaries for the distribution of the Testator’s assets by inserting the Beneficiaries’ details and portion in the Testator’s will. The Beneficiaries to be inserted into the Testator’s will may be anybody the Testator desires to distribute the Testator’s assets to, including but not limited to family members, relatives, illegitimate children, friends and charitable organisations. The portion of assets to be distributed and limitations of action after distribution of the said assets can also be clearly set out and written in the will as the Testator desires.

ENSURING PRECISE PROTECTION AND SURVIVORSHIP

With legal advice and guidance, a Testator can ensure that the Testator’s will entails protection clauses to secure the rights of the Testator’s beloved ones after the Testator’s death, which is not included in intestate (dying without a will) procedures. Among the examples is the right of occupation by the Testator’s parents and/or spouse at a certain property even if the property is not distributed to the parents and/or spouse.

Besides, a Testator’s will can also include substitute Executors and distribution alternatives by way of survivorship clauses so as to prepare for any unforeseen circumstances. With such survivorship clauses in the will, the demise of any Executor(s) and/or any Beneficiary(ies) in the will before the commencement of the application for grant of probate and/or the administration of the Testator’s assets will not lead to a conflicting or deadlock situation and/or unfair distribution since there are alternative plans set in the Testator’s will.

PROCESS TO DISTRIBUTE ASSETS AFTER DEATH SAVES TIME (IF NOT CONTESTED)

Upon a Testator’s death, if the Executors or family members of the Testator can locate the original will immediately, the application for grant of probate will be smooth and fast (subject to non-contest and legal requirements being met). Grant of probate application is a fast process because the will has already stated clearly the intentions of the Testator after the Testator’s death, including but not limited to the Testator’s assets, Executors, Beneficiaries and portions of the Testator’s assets to be distributed.

Please reach out to us should you need any legal help at penang@nglaw.com.my or +601154304970 / +6046024970.

Kindly take note that this article contains general information only and shall not constitute as legal advice.

REFERENCES

The Law Dictionary, “LAST WILL AND TESTAMENT Definition & Legal Meaning”, Black’s Law Dictionary, Free 2nd ed., (Obtained as at 18.08.2023) https://thelawdictionary.org/last-will-and-testament/.