How to Make a Will: What You Should Know



A will is essential to alleviate any uncertainty about who will receive your estate or how it will be split up when you die. It will also avoid additional legal costs for those you leave behind. By failing to prepare a will, you leave the fate of your loved ones in question. Making a will allows you to distribute your assets as you wish and not have the court do it for you.


The Bermuda Census recorded 471 deaths a year – and 55 per cent of adults across the globe do not have a will when they die. Those who do choose to make wills are generally older – over 90% of wills were made in the U.S.A. by someone 60 years or older. But death can happen at any age and having a will should not be something to be overlooked.


Do not assume you do not need a will – you do!


Wealth includes a pension plan, a savings plan, a vehicle and maybe also life insurance. It is not unusual to hear ‘I do not own anything of value, so I do not need a will.’ However, you probably just do not know how wealthy you are until you start to calculate your estate.

Simply telling your relatives what your wishes are is insufficient. Making a will is the only way your wishes are legally binding. Otherwise there could be a ‘free-for-all’ distribution where your estate is concerned.

The legal fee to make a will can usually be obtained in advance if you request it. You can also create your will for free online. Not having a will could cost your family a lot more in legal expenses in the long run than the legal fees to make a will.

If you do not make a will it could result in the distribution of your estate being different to how you would wish.


Do not forget the formalities

A will must be signed and that signature must be formally witnessed by two or more witnesses who are all present at the same time.

You must give your full and proper legal name so that no misunderstanding arises when the death certificate is produced to the Supreme Court on Probate.

Use your full residential address, not a post office box.

 

Do not make a will then forget about it

It is very important to review your will regularly. Bear in mind changes in life circumstances, such as births, marriages, deaths, divorces and inheritances within your family and friends.

You also need to think about regularly making changes to your will in relation to new legislation. Almost every year there are changes in the Government’s Budget, some of which may impact, directly or indirectly, on you.

Your will walks through life with you and you should aim to update it at least every three to five years.


Appoint an executor

You need to not only decide who your assets should go to, but also select someone of your choosing to distribute them. There must be at least one executor but Probate will not be granted to more than four people.

Executors are your business managers after your death. They are responsible for applying for Probate from the Court and distributing your estate in accordance with the directions laid out in your will. They receive your assets and are responsible for seeing that your debts are paid out of those assets.

It is advisable to obtain the consent of your executors to avoid the possibility of them renouncing their executorship upon your death.

You will also need to appoint guardians, who will look after your children if you die while they are still under the age of 18. This will then act as guidance to the Court in the event of a dispute over guardianship.


Stamp duty tax

Property owners can designate a primary family homestead to be exempt from stamp duty tax that would otherwise be due upon the death of the owner.

Only residential properties used wholly or mainly as a private dwelling, such as a house or condominium, can be designated as a primary family homestead.

The exemption is from stamp duty chargeable on the estate of an owner upon death and is granted based on the Affidavit of Value provided by the Supreme Court.

If you own more than one property, you must choose only one property to receive the exemption.

You can download and fill out the application for primary homestead designation here. You will need to have the property’s full address, the assessment number and proof of ownership. The application fee is $27.

There is an additional exemption from stamp duty on assets passed to a surviving spouse.

Other Bermuda properties are subject to estate stamp duties (commonly known as ‘Death Tax’). You have three months to pay the stamp duty to the Tax Commissioner. There therefore needs to be enough available cash to pay the stamp duty, which is on a sliding scale depending on property value.


Destroy your former wills

If a former will is still in existence and does not contain your current wishes, you should destroy it in the presence of a lawyer.

Giving instructions to your lawyer will not change your former will. It will remain in force until you have executed your new will or destroyed the old.


Loss of the original will

If an original will is lost and is not found after the person’s death, there is a legal presumption that the person revoked the will by destroying it while alive.

You therefore need to obtain the Court’s permission to prove a copy of the lost will. This will include providing evidence of the contents of the will to show the will must have been accidentally lost rather than intentionally destroyed.


Conclusion

Making a will should not be overlooked and should be drafted as soon as possible. Your will lets you decide what happens to your money, property and possessions after your death. You can write it yourself, but you will need to get advice if it is not straightforward. You also need to get your will formally witnessed to make it legally valid. Remember, if you die without a will, the law says who gets what.

 

US statistics provided by info.legalzoom.com based on a survey carried out by estate planning firm Morris, Hall & Kinghorn, PLLC.

 

 


This material is intended for information purposes only and does not constitute legal or financial planning advice. For legal or financial issues that arise, you should consult with an appropriately qualified professional.