Making a will is the last gift you can give to your family as it protects their interests and makes the management of your estate after death easier and less stressful.
It’s surprising how many people still don’t write a will, but this is often because they have made assumptions (usually incorrect) about what will happen to their possessions and assets when they die. Other people just remain in denial.
Benjamin Franklin, one of the founding fathers of the United States, said the two great certainties in life are death and taxes. So, it makes sense to write a will and not put it off.
What is a will?
A will is a legal document stating how you want your personal belongings and assets (your estate) to be distributed when you die.
A will may also contain important information about the care of children under 21 -called minors. Testamentary guardians are usually appointed in a will to care for any minors.
Is it important to make a will?
Writing a will is all about leaving your affairs in order so that when you die, your family is provided for and experience the least amount of stress sorting out your estate.
Wills are for more than just itemising who gets what after someone dies. A will makes financial provisions for a spouse or partner and ensures that children under the age of 21 are looked after.
Most people with children under 21 are encouraged to appoint a testamentary guardian in their will. Testamentary guardians can look after any children, particularly in the event of simultaneous death, rare but still possible, for instance, in a car or plane accident.
How to make a will in Singapore
The Wills Act contains the legal requirements for creating a valid will in Singapore. The person making the will is called ‘the testator’ Here are the key requirements:
- The will must be a written document.
- The testator must be at least 21 years old, so legally, an adult.
- The testator must sign the will.
- At least two witnesses must witness the testator’s signature, and these witnesses must both sign the will in the testator’s presence, but the witnesses don’t have to sign in each other’s presence.
- The two main witnesses cannot benefit from the will.
- The two main witnesses cannot be the spouse of a beneficiary.
What should a will contain?
A will contains the property and possessions of the person making the will; it cannot include jointly owned assets like a property or other jointly owned high-value items.
The will should also refer to the testator’s liabilities, including bank loans, credit cards, finance agreements, and other debts owed.
The testator gives the identity of their beneficiaries in the will and indicates what they will receive; this could be a percentage division where money is concerned or specific items like family jewellery or valued assets.
A residuary clause should deal with the remainder of the estate after debts and liabilities have been paid and specific bequests distributed.
A will identify the executors who will apply for a grant of probate and then distribute the estate in line with the testator’s wishes.
A will should always contain a revocation clause or statement which clearly revokes any previous wills.
The difference between a specific gift and a residuary gift
A specific gift in a will can refer to an individual item like a car or a piece of jewellery or furniture, or it can be a defined sum of money.
Specific gifts must be clearly identified so there is no confusion in the minds of the executors about exactly what is referred to as the gift.
A residuary gift or the residue is what remains after all the debts have been paid and specific gifts made. This is the remainder of the estate, and the testator usually indicates who will benefit and in what proportions, typically expressed as a percentage.
A testator doesn’t have to list specific gifts; the estate can simply be divided amongst named beneficiaries once all liabilities have been paid.
Who distributes the estate?
A valid will must appoint an executor to manage the deceased’s estate. The status of executor allows that person to apply for a grant of probate.
An executor must be at least 21 years old, be of sound mind, and not bankrupt.
Usually, the next of kin, such as a spouse, is appointed the executor, but it is an onerous and lengthy process, and not always welcome at a difficult time.
Grant of probate
A grant of probate is a legal document that gives the executors power to distribute the deceased’s estate in line with the provisions of the will.
What happens if there is no will?
Dying without a will or a valid will is described as dying ‘intestate’. Rather than applying for a grant of probate, the next of kin or a family member applies for a grant of letters of administration.
The Intestate Succession Act (ISA) sets out who has the status to apply for letters of administration and how the estate should be distributed when there is no will to give directions.
If you want to lose control over your affairs after death, then make sure you don’t write a will! The ISA dictates the priority for the distribution of assets, money, and personal possessions, which may not be in accordance with either your assumptions or your wishes.
Generally, siblings and parents receive nothing if there is a surviving spouse and children. This catches some people out, particularly those who wish their estate to help support elderly parents or a sibling with specific needs.
The distribution list in the ISA is absolute and cannot be departed from. It sometimes accords with what someone would have done anyway, but not always. The ISA assumes an order of priority that you may not wish to follow.
Final thoughts
No one wants to think about their own mortality, and that’s why writing a will is generally a task put off for another day. However, for your family, it can be the best gift you leave them. A will provides for their future and offers peace of mind for someone coming towards the end of their life.
Simple wills don’t cost more than a few hundred dollars, and most probate lawyers offer fixed pricing for sole or joint wills. It’s always worth taking the advice of an experienced probate lawyer if you have property and assets.
Frequently asked questions
What happens to a mortgage or any other debts after death?
You don’t need to make specific provisions for debts in your will, as these are always paid before the estate is distributed.
Debts and liabilities, which are in joint names like mortgages, are not included in a will, only property solely owned by the testator. Usually, the mortgage on a family home is left in place with two choices open to a surviving spouse; sell the property and redeem the outstanding mortgage or continue to pay it.
What happens if both parties to a marriage die simultaneously?
If there are no children, then one estate is administered, followed by the second. However, if there are minors, then the situation is more complicated.
Appointing a testamentary guardian in your will protects any children under the age of 21 if both parents die at the same time, for example, in an accident. A testamentary guardian can protect the children and have custody over them.
Do I need a lawyer to write a will?
Writing a valid homemade will is possible, but only if properly executed and witnessed; this is often where people trip up.
A homemade will is potentially more likely to be open to challenges, so it’s always better to have a will drawn up by an experienced probate solicitor. They will assess your individual circumstances and advise you on the aspects you may not have considered.
When should I write a will?
Every adult should make a will, and that will should be updated at significant points in life, such as marriage, and the arrival of children.
A will may be valid, but if it’s out-of-date in terms of the content of any bequests, then it can be counterproductive. Wills should be reviewed roughly every five years to ensure their terms remain relevant.
