Frequently Asked Questions

Q: What is a Will?

A Will is a legal document through which you can direct what should happen to your property, possessions and money when you die.

Q: Who is a Testator?

A Testator is the person who makes his or her Will.

Q: What happens if a person dies without a Will?

When a person dies without a Will, the deceased's assets may not be distributed according to his wishes but according to the laws of the state. It means such a person died Intestate.

Q: What happens after someone who has a Will passes away?

The Probate Court administers the reading of the Will and the Executors carry out the wishes of the Testator.

Q: Does a person have to have a minimum amount of assets to create a Will?

No, a person can create a Will to dispose of assets worth any amount at all as long as they are of value to him or her.

Q: Who is an Executor?

An Executor is an individual appointed to administer the estate of a deceased person. The Executor's main duty is to carry out the instructions and wishes of the deceased. The Executor is appointed either by the Testator of the Will (the individual who makes the Will) or by a court, in cases where there was no prior appointment.

Q: Who is a Trustee?

A Trustee can either be an individual or a corporate body appointed by the Testator to look after the assets in the Trust for the benefit of the Beneficiaries. They can also be your Executors. They look after the assets in the trust for the benefit of the Beneficiaries.

Q: Who is a Guardian?

A Guardian is appointed to look after your minor children if there is no other person with parental responsibility alive at the date of your death. You should choose your guardians carefully and discuss with them to know if they are willing to take on the role of guardian in the event of your death.

Q: How many executors do I need to appoint?

The law requires a minimum number of two Executors.

Q: Who is a Witness?

A witness to a Will is a person who participates in the validation of a Will. The law requires that the Will must be signed by the Testator in the presence of at least two Witnesses, present at the same time.

Q: Can my Will be changed?

Your Will can be changed at any time during your lifetime provided you retain the capacity to do so.

Q: How often should my Will be revised or updated?

Your Will expresses your wishes at a particular point in time. It is advisable to review your Will as your circumstances change so that it accurately reflects your current wishes. Situations requiring that you update your Will include:

  • Marriage.
  • Separation or divorce.
  • Starting a de-facto relationship.
  • Having children or grandchildren.
  • Your children having remarried or divorced and have extended families.
  • An Executor named in the Will, having become ill, is unable to handle the responsibility, or has died.
  • The death of a named Beneficiary in the Will.
  • Upon the death of a spouse.
  • When the value of legacies diminishing over time.
  • At the time of retirement as this period often results in people restructuring their affairs.
  • When you buy or sell valuable assets so as to ensure you are giving out what you still own.

Q: How are Trustees appointed in a will?

You appoint a Trustee by naming the person of your choice in your Will. Often times, when a trust is created in a Will, the Executors are also appointed as the Trustees.

Q: How should I choose who to appoint as a trustee?

The Trustee's job involves a fair amount of work and responsibility. A person cannot be forced to take on the role of a Trustee. For this reason it is a good idea before appointing a Trustee to check whether your choice would be willing and able to take on the role.

Trustees often have wide powers, for example, making decisions as to how to invest monies held under the trust. For this reason it is a good idea to appoint someone who is trustworthy, impartial and has some experience in dealing with financial matters to act as a Trustee.

A Trustee can be a family member, a friend, or a professional person such as a Solicitor or an Accountant or even a corporate body such as Leadway Capital & Trusts Limited. A professional Trustee is allowed to charge for their work and their charges will be deducted from the proceeds of your estate.

Q: How many Trustees should I appoint?

There is nothing stopping you from appointing just one Trustee. However, it is normal and preferable to appoint 2 or 3 Trustees (especially when you are appointing individuals) in case, for example one of your Trustees dies before you.

Q: Can I change the Trustee I have appointed?

Sometimes it will become necessary to change the Trustee you have appointed, for example if the Trustee has died or is no longer willing or able to take on the role. If you want to change the Trustee you have appointed you can do this by making a new will or by making a Codicil.

Q: Who can witness my Will?

A Will must be witnessed by two or more independent people aged at least 18 years old. The Will must be signed in their presence at the same time. Your Witnesses do not need to know the content of your Will.

The Witnesses cannot be:

  • Blind;
  • Beneficiaries in your Will;
  • Spouses or Civil Partners of Beneficiaries in your Will

Q: Can I abbreviate names in my Will?

It is best not to abbreviate names. When making your Will, use people's full names and details wherever possible.

Q: Where should I store my Will?

A Will should be executed in several parts (copies). You should store your Will in a safe and secure place and tell your Executors where it is. Copies of the Will may be kept in the following places:

  • The Testator's safe.
  • With the Solicitor.
  • With a close relative or associate.
  • With a Bank.
  • At the Probate Registry.

Q: How do I change my Will?

A Will can be changed by writing a new valid Will or making a valid Codicil to the Will. A Codicil is a document that amends a previously executed Will, rather than replacing it.

Q: Can I change or revoke my will after I make it?

You can revoke your Will at any time before death by making a new Will which states that all prior Wills are no longer valid. To revoke your Will without making a new one, all you have to do is tear it up, deface it, burn it, or destroy it with an intention to revoke the Will.