Why should I write a will?

If you are new to the concept of wills, a will can be simply described as a legal document which sets out your wishes and intentions for the distribution of your assets and property after you pass away. 

A will helps to ensure that your wishes are carried out as far as legally possible and your loved ones are taken care of. As such, one should never underestimate the importance of wills and estate planning.

In summary, here are some reasons why you should consider creating a will:

Control of your assets: With a will and proper estate planning, you have control over how your assets are distributed after you pass away. Without a will, your assets will be distributed according to the intestacy laws in Malaysia (i.e. according to Section 6 the Distribution Act 1958), which may not align with your wishes.

Nomination of guardians: A will is especially important if you have minor children that depend on you. In your will, you can nominate a guardian for minor children and provide for how your assets are to be eventually distributed to them upon attaining the age of majority. This ensures that your children will be taken care of in the event something happens to you.

Avoiding family disputes: We hear too often about family members fighting over matters concerning inheritance – often resulting in long drawn-out legal battles and division among families. Having a will can certainly help to avoid such family disputes by clearly stating your wishes and identifying who your assets will go to.

Reducing taxes: There is currently no inheritance tax in Malaysia. In other words, there is currently no tax imposed on the transfer of ownership of property under inheritance.

What should be included in a will?

While the exact contents of a will may vary depending on your circumstances, here are some common provisions that should be included:

Executors: An executor is the person responsible for carrying out your wishes as stated in your will. This person should be someone you trust, and they should be able and willing to manage your estate effectively. You may name up to 4 executors and also name replacements should any of your named executors refuse executorship or predecease you.

Beneficiaries: Your will should clearly identify the individuals or organizations that will receive your assets after you pass away. Full names and other descriptions must be stated to avoid any confusion as to the identity of the intended beneficiaries.

Bequest and devise: A bequest is a gift of personal property such as jewellery, cars, family heirlooms, other valuable items. A devise is a gift of real property. The will should list out all the assets that are to be distributed.

Appointment of Guardian and Trustee: If you have minor children (i.e. below 18 years old), your will may nominate a guardian to care for them if both parents have passed away. For minor beneficiaries, you may also appoint a trustee to hold property on trust before distributing the property to the beneficiary upon reaching 18 years of age.  

Residuary clause: There may be a surplus of assets that are not distributed by the will after payment of outstanding debts or expenses relating to the estate – this could be caused by a change of circumstances from the time the will was written. This surplus will form part of your residuary estate and in the absence of any specific clauses in your will, it may result in a partial intestacy and will be distributed under intestacy laws. To avoid this, your will may include a residuary clause, expressing how such assets are to be distributed.

How can I write a will

Creating a will may seem daunting, but it can be a straightforward process. Here are some steps to follow:

You consult a lawyer or even decide to write a will on your own. However, if you choose to write your own will, you would need to take care to ensure that it would be legally enforceable at the end of the day. A lawyer can help you create a valid will that meets your specific needs and can be legally carried out in the end. A lawyer can also assist you mapping out eventualities when drafting the will i.e. proving a Plan B, C, D etc. to prepare for unexpected changes in circumstances.

You would then need to decide on your beneficiaries and executors and ensure that the formalities prescribed by the Wills Act 1959 are complied with including, signing the will and having the signature witnessed by two competent witnesses.

After drafting your will, from time to time, you may need to review and update your will. As your circumstances change, it’s important to review and update your will to ensure that it continues to meet your needs and can be carried out effectively.

In conclusion, creating a will is an undoubtedly important part of estate planning. It helps ensure that your assets are distributed according to your wishes, and that your loved ones are taken care of after you are gone. By consulting with a lawyer and following the steps outlined above, you can create a will that provides peace of mind for you and your family.