Crafting Your Final Wishes: Guidelines for Writing Your Last Will and Testament

When you are finally- mentally- ready to write your “Last Will and Testament” document, there are some general important steps and various issues to consider, so that it will be legally binding and upheld valid and, hence, your wishes of what happens to your assets after you pass away will be executed easily.

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A last will and testament allows you to lay out your wishes and specifying to whom your belongings should go to and how, who would take care of your children or dependents and who is in charge of making that happen. It is definitely one of those legal documents that everyone avoid thinking about and still, it is one of those documents that you would appreciate having.

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Probate is the legal process of administering an individual’s estate after their death. If you have a last will and testament, the probate process will involve proving that your last will and testament is legally valid, executing the instructions specified therein and paying applicable taxes and debts.? In the absence of a last will and testament, a situation known as dying "intestate”, your estate will be probated by the court in accordance with the applicable (inheritance) laws, mainly by identifying your heirs out of your relatives and distributing your assets accordingly.

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First of all, to be able to draft a last will and testament you must be of legal age (mostly, 18 years old) and of "sound mind” and mentally capable to grasp the meaning of the document before you sign it.

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Before starting drafting your last will and testament, it is crucial to identify the proper jurisdiction that apply to you, to ensure your last will and testament is legally valid and enforceable. Here are some key factors to consider while assessing the jurisdiction applicable to you:

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1.???? Habitual Residence: generally, the jurisdiction where you reside and have your primary and long-term residence is the most appropriate jurisdiction to draft your last will and testament. This is often the country or state where you have your primary residence or domicile;

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2.???? Citizenship and Nationality: the laws of your country of citizenship or nationality may impact the validity and interpretation of your last will and testament, especially regarding matters such as inheritance taxes and spousal rights; and

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3.???? Location of Assets: consider where your assets are located. If you have assets in multiple jurisdictions, you may need to consider the laws of each jurisdiction where the assets are located. Some jurisdictions have specific rules regarding the distribution of assets located within their territory.

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Some jurisdictions allow individuals to choose the applicable law for their last wills through a choice-of-law provision. This provision explicitly states which jurisdiction's laws will govern the interpretation and validity of the last will and testament. However, not all jurisdictions recognize or enforce such provisions.

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Especially if your assets are located in one place but you live somewhere else, or if you have connections to multiple jurisdictions, it is essential to understand potential conflicts of laws. These conflicts arise when different legal systems have jurisdiction over specific issues, and they can affect the interpretation and validity of your last will and testament.

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Once you have determined the proper jurisdiction and got yourself familiarized with the inheritance laws and the specific requirements that apply to your situation, you can move forward with drafting your last will and testament, aligning it with the specific laws and regulations of the chosen jurisdiction that should be followed strictly.

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While specific requirements, legal considerations and possible tax implications may vary depending on the jurisdiction and applicable laws, such as form and execution, freedom of disposition, testamentary capacity, spousal inheritance, legal formalities, among others, there are some general steps to consider when drafting your last will and testament:

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1.???? List your Assets: begin by making a comprehensive list of all your assets, including real estate properties, bank accounts, investments, retirement plans, life insurance policies, personal belongings, artwork and any other valuable possessions.

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Consider which of your assets is single or jointly owned, held in trust?such as life insurance policies or pension benefits, bonds, shares, bank account details and ISAs Royalties, mortgage, debts and liabilities.

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2.???? Identify your Beneficiaries: determine whom you want to include in your last will and testament as your heirs or beneficiary to a specific bequest. These can be individuals (family members, friends, or organizations) or even charitable causes. ?

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Consider family members or others who are financially dependent on?you and how to continue supporting them.

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Be familiar with any relevant protections or limitations according to applicable laws with respect to your beneficiaries, such as with regard to disownment of a child or disinheritance of a surviving spouse.

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3.???? Distribution of Assets: clearly explain how you want your estate to be divided amongst your beneficiaries and detail any bequests intended to a specific legatee. ?

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You can allocate specific bequests of particular items or specific sums of money, a possession or a percentage of your estate to each beneficiary. If you wish to donate money to charity then include the exact charity’s details and the specific bequest.

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4.???? Specific Instructions: consider including in your last will and testament instructions to cover your personal situation and wishes, such as for alternative beneficiaries in case your primary beneficiaries predecease you, who will take care of your pets and from which funds, the funeral arrangements, specific choice-of-law, among other aspects.

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If you have minor children, an elderly parent or other dependents, think of the appointment of legal guardians to take care of them if worse comes to worst. Consider also naming alternative guardians, to make sure someone is responsible for their welfare if your primary choice cannot fulfill this task, and advisably inform them and make sure they are up for it. ?If you want to leave money to your minor child, consider naming a trustee to administer that money until the child becomes an adult.

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Try to think ahead by exploring different possibilities and possible problems, such as allocating your estate as a whole to your surviving spouse to use, under certain conditions during their lifetime, and thereafter transfer it to your other beneficiaries. Make sure that your instructions are unambiguous, to ensure your wishes are understood and followed correctly.

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5.???? Inheritance Tax: inheritance tax is the tax applied on an estate after the testator dies, before it is allocated to the beneficiaries. If under the laws applicable to your juresdication an inheritance tax is levied on your estate, consider obtaining an inheritance tax planning tailored to your situation and implemented in your last will and testament, to avoid paying tax unnecessarily.

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6.???? Appoint your Executor: you may select someone you trust to act as the executor of your last will and testament. This person will be responsible for carrying out your wishes and distributing your assets amongst the beneficiaries according to your instructions and ensuring that any (inheritance) taxes and outstanding debts are paid.

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An executor must be at least 18 years of age and you can appoint a friend, a family member (even a named beneficiary) or a solicitor to act as your executor. If no executor was named in your last will and testament, the heirs would act as the executors, unless disagreements between heirs may lead to the probate court to appoint a professional executor, to ensure your wishes are carried out and finances in order, including the requirements to file your final taxes, paying any debts and conclude your financial affairs.

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7.???? Signing and Witnesses: depending on the applicable jurisdiction, to be valid, your last will and testament must fulfill the legal formalities requirements. While a last will and testament can be signed and legalized before an official authority (e.g., civil-law notary, a registrar of inheritance or a judge), in some jurisdiction it suffice to date and sign the last will and testament in the presence of two witnesses.

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The two adults witnesses, both of whom are not beneficiaries or relative of a beneficiary named in that last will and testament, must see you sign your last will and testament and then, in-turn, sign your last will and testament in your presence.

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8.???? Depositing: depending on the applicable jurisdiction and form requirements, consider how to formalize your last will and testament. Some jurisdictions require that the last will and testament is done in the form of a deed made up by a civil-law notary and deposited in a central registry of wills, while other jurisdictions recognize a document written in the testator’s handwriting, dated and signed as a valid last will and testament, without a need to have it deposited anywhere.

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Make sure to store your last will and testament somewhere safe, where your heirs could find it, whether it is a safe, a high shelf in a cabinet, a friend or an official registry. If you were assisted by a professional or signed your last will and testament before an official authority, you could probably deposit your last will and testament with them or get advice in this respect.

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9.???? Revoking or Amending: you can always cancel your last will and testament or amend your instructions in it, by means of a signed “codicil” attach to the last will and testament (if possible, according to your jurisdiction’s laws) or by drafting a new last will and testament, which would then replace and revoke the previous one.

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Altering your last will and testament, to make sure it continues to reflect correctly your wishes, should be considered whenever you undergo a major life event, such as the birth or adoption of a child, marriage or divorce, buying or selling a property, the death of one of your beneficiaries or executors, changes in your financial situation, etc..

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Remember: it is important to address all components of your estate planning in your last will and testament, to ensure your affairs would be settled the way you want.?

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Particularly in situations where foreign assets are part of your estate, it is advisable to take into account those requirements under other jurisdiction involving probating a foreign last will and testament, to overcome potential challenges and making it easier to fulfill your wishes regarding your affairs after you have reached 120 years.

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By having a clearly written last will and testament, properly following the specific formalities and guidelines required under your jurisdiction, you can guarantee a smoother probate process for your loved ones.

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Obiter dictum: the information provided above serves as general guidelines and should not to be regarded as a legal advice. It is highly recommended to consult with a qualified attorney who specializes in estate planning and the laws of the relevant jurisdictions, to provide tailored guidance based on your specific circumstances.

Feel free to reach out if you have any further questions or need additional assistance!