The pros and cons of writing a Will

Wills are legal documents that are written by a person to protect their property after they die. Wills are validated by Commissioning Officers and witnesses and, therefore, can be used in a court of law.

THERE ARE SEVERAL TYPES OF WILLS.

The mutual will is done to ensure that the remaining spouse will be the heir. The oral will is done through the word of mouth. The testamentary will is usually done to distribute assets. However, the joint and the deathbed wills are discouraged because they are susceptible to abuse for some selfish gains. Anyway, a will ensures that minors and the remaining spouse have access to property of the deceased. Ownership of the property is granted to the children and the spouse. This makes sense since they would have contributed to acquisition of the wealth, in one way or the other. A will ensures that the wishes of the deceased are known and enforced. For example, it may spell out how the deceased wanted their burial to be conducted. It can also state what should happen in the event that the testator is incapacitated due to injury, illness or old age.

THIS IS CALLED A LIVING WILL.

A will may show to whom the deceased wanted to donate, for example they may want to donate their kidney to the organ bank. To make a will is generally inexpensive and currently it is readily available at law firms and legal aids.

A will does not only ensures, it informs the testator and the family as to who will get what after death. It actually prevents disputes over inheritance and unnecessary conflict associated with division and distribution of property.

It can appoint a guardian to minor children. The presence of a will speeds up the entire process of identifying and distributing inheritance because it serves as a guide. A will can be amended to cater for whatever change that may come in life such as birth of a new child, marriage, death of a key beneficiary or simply a change in the property. The property can be finished off, converted, damaged or may have lost value. A will, in essence, gives the testator control over their estate and over nomination of beneficiaries and at times how the beneficiaries will or will not use the inheritance benefits. It serves as a long term prosperity plan that goes beyond life. Through a will, a testator can classify assets as probate and non- probate. Without a will the potential beneficiaries may undergo a rigorous and tiresome process of probate. A will prevents a situation whereby legal instruments are used to identify estates, nominate beneficiaries and distribute your assets outside your wishes. If one can’t make a decision for oneself somebody will make a decision for them. Writing a will is worthless because it can only be enforced after death of the testator. If there is a need, during the course of life, for the asset owner to transfer ownership of some property it literally means that the testator loses ownership of the said asset, and excludes it from the will. Still, even if you die intestate ( without a will), the children and the spouse can still benefit from your funeral covers and retirement benefits without any court proceedings. In the same token if one does not have a will, one’s assets will undergo a probate which, as a legal procedure, will fairly distribute and settle liabilities. A will can easily be contested by a suitable beneficiary and a court order, then, may override the testator’s wishes. A testator may not tell in his / her lifetime who will contest his/ her wishes. A will on its own is a legal document that forms part of public records. They can be used by authorities or interested parties for research, reporting, statistics or for policy making. A will can also erode privacy of the family during the process of its execution particularly where there is litigation or contest. Our Setswana tradition has a procedure whereby elders respect the fact that the widow or the widower has to remain with assets belonging to the deceased or to both of them.

In the event that both parents have died, the elders may keep some assets until children are grown and responsible enough to care for them. Any asset talk is done after grieving. Therefore, it is against this traditional background that writing a will is like one is expecting death any time sooner.

GO ITLHOLLA LOSO.

So, some people disassociate themselves from writing wills for the reason that traditionally you don’t prepare for death; you cross the bridge when you get there.

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