Will & Estate Planning

Understanding a Will as a Tool Of Estate Planning

Making of a Will in Uganda is a very popular topic of discussion, majority people at a given point have thought of how their wishes should be executed when the they are no more, this ranges from how they desire to be buried, how their estate should be distributed and a lot more, this notwithstanding the fact that a good section of people think that by Making a Will, one is approaching his or her death and many other misconceptions surrounding this topic.

  Much its statistically proven that Wills are the most preferred and popular modes through which people want their wishes to be fulfilled when they finally die, many people still struggle on how, when, who and what can be embodied in a valid Will which can be enforced by Courts of Law. This article aims at navigating these dilemmas by clearly stating what amounts to a Valid Will, how Wills are managed and many other essential pieces of information about Wills as detailed below. Additionally, if you want us to you draft a valid Will or you know any person who wants one, don’t hesitate to book an appointment or recommend that person.

WHAT IS A WILL

A will is a document that provides for the wishes of a person upon his or her death.

These wishes may include;

1. How to distribute his or her property.
2. How to manage the children and other dependent relatives.
3. Who will manage property.
4. How the deceased debts will be managed.
5. Who shall be the customary heir, where applicable.
6. Burial related issues.
7. Who the executioners will be.

Who can make a Will?

Any person of sound mind who is aged 18 years and above.

Note

1. A person who has a hearing impairment, physical impairment, speech impairment or visual impairment is capable of making a Will if he or she is able to do so.
2. A person who ordinarily has mental illness may make a Will during an interval in which he or she does not have the mental illness.

What are the compulsory requirements of a valid Will?

For a will to be considered valid, it should meet the following requirements:

1. A will must be in writing.
2. The person making a Will should be at least 18 years of age.
3. The person should be of sound mind.
4. The person making the Will should not be under the control or influence of any person who takes away their decision-making power.
5. The person making the Will should provide for an executer or executors, executrix or executrices who will carry out his wishes as mentioned in the Will.
6. The person should mention all his or her children.
7. The written Will should be signed by both the owner of the will and his or her witnesses on each page.
8. At least two people should sign as witnesses in the presence of the owner of the will.
9. The witnesses must be eighteen years and above and of sound mind.
10. Each witness must sign and write their name and address on each page of the Will.

 Note

1. The witness must have seen the maker of the Will sign it.
2. The witnesses should not be beneficiaries of the estate.
3. A member of the armed forces or a mariner at sea need not have written a Will.

What property can be distributed in a will?

All property owned by a deceased person can be distributed except the residential home or homes.

What are examples of property that can be distributed in a Will?

Some of the examples of property that can be distributed in a Will include: house hold belongings any buildings on the land, money, vehicles, farms, shares and other investments.

Note

1. The residential home or homes may only be distributed in a Will; where the deceased has provided a residence of equivalent value or status for his or her surviving spouse and children.
2. A will may be altered by court where the maker of the will fails to provide for his or her beneficiaries such as the surviving spouse and children.
3. Courts may alter a will only on grounds that provision has not been made for some of the children or surviving spouse(s).

Where can a will be kept for safe custody?

A maker of the will can safely keep his or her will:

1. At the office of a Chief Registrar;
2. At the High Court;
3. At the office of the Administrator General;
4. With religious leader or institution(s);
5. At a bank; or
6. With a trusted person.

MANAGEMENT OF A WILL

Management of a Will is also a very important aspect when dealing with Wills, this is largely done by the person appointed in the Will as anexecutor or executrix

 Who is the executor or executrix?

This is the individual or individuals appointed in a will and entrusted to put into effect the wishes stated in a will. The appointment of an executor or executrix is confirmed by court which gives a letter of probate.

 Note

An executor does not have power until issued with letters of probate by a competent court.

Who appoints an executor or executrix of a will?

1. The maker of the will appoints his or her executor or executrix in his or her will.
2. The maker of the will may appoint one or more executors or executrices to manage his or her will

How is an estate where there is a will (estate succession)?

1. Where a will is valid and an executor or executrix has been appointed, the executor or executrix can go to court to obtain letters of probate.
2. The executor or executrix should go to court to apply for letters of probate within one year from the death of the deceased person.
3. Upon obtaining letters of probate, an executor or executrix has the power to manage the estate and distribute the property as stated in the will.
4. A will must be executed within two years from the date of obtaining letters of probate.
5. After two years, an executor or executrix should make a report to court on how he or she managed the estate.
6. If the executor or executrix of a will is unable to execute the will within the required two years, they may ask for extension of time from a competent court.

What are the duties of an executor or executrix?

The duties of an executor or executrix include;

1. Apply to court for grant of probate;
2. Find out and receive the estate of the deceased
3. Manage and distribute the estate of the deceased person according to the will of the deceased. For example, payment of outstanding debts and maintenance of beneficiaries;
4. Where applicable, represent or file the deceased person’s civil court case(s) in courts of law; and
5. Make a final account or report on the management of the estate of the deceased person to court.

What happens when a will does not provide for an executor or executrix?

Where a will does not provide for the executor or executrix, he surviving spouse and beneficiaries should apply for letters of administration with the Will attached. The process is as follows:

1. The applicant(s) should obtain a letter of introduction from the LC1 chairperson;
2. Obtain passport size photographs and national   the beneficiaries and applicant(s);
3. Open a file at the office of the Administrator General;
4. The office of the Administrator General will guide the family in the appointing of administrator(s) of the estate;
5. The Administrator General will issue a certificate of No Objection and certified minutes of the family meeting to the persons appointment by the family;
6. The persons who are issued with the certificate of No Objection must apply to court for letters of administration with a will attached;
7. A court may allow the persons who are issued with the certificate of No Objection to put a notice in the newspapers (advertise) informing the public that they intend to apply for letters of administration
8. Upon obtaining letters of administration; the administrators have to distribute the property in accordance with the will within two years from the date of obtaining the letters of administrators;
9. If the administrators are unable to distribute the property within the required two years, then they will have to as foe extension of time from court.

What happens when the executor or executrix refuse to accept their appointment?

Where an individual or individuals effuse to accept the role of an executor or executrix of the deceased person’s estate; the beneficiaries may apply for letters of administration with a will attached.

 Note

1. A surviving spouse has priority to apply for a certificate of No Objection from the office of the Administrator General.
2. The Administrator General may issue the certificate of No Objection to the surviving spouse alone or join him or her with other person appointed by the family.
3. If the entire estate is not worth more than fifty million an executor or executrix shall obtain letters of probate from the magistrate’s court.
4. The high court has jurisdiction to grant letters of probate to the executor or executrix for any estate with a value above fifty million shillings.
5. Court may grant extension letters of probate if it is in the best interest of the estate and with the consent of the beneficiaries.

In conclusion making of will is a very important aspect in everyone´s life as it enables ones wishes to be fulfilled even during death. Having had the benefit of witnessing the confusion that occurs amongst family members after the death of their beloved one, I highly recommend that one should make their Wills most preferably with the help of Lawyers. I hope that you find the above article helpful and it can help someone out there make their own Wills.