In recent weeks I have had to attend to the personal affairs of a close relative who had died after a short spell in hospital. I was named as the sole executor so it was my responsibility to firstly verify the person's assets, then attend to any debts and, finally, arrange distribution of the residue to the various beneficiaries. In this case, the estate was very straightforward because the will had been professionally prepared. As I write, all the beneficiaries have been contacted and I expect the formalities to be completed in the next month or two.
My experience, at least in terms of my duties to the estate, has not been too painful. But it set me thinking that such an outcome, coming at a time of obvious stress for the deceased's relatives, could not have been achieved without prior planning. As someone once said, the only certainties are death and taxes, but the timing of the former and the scope of the latter are less easy to predict. So what steps can we take to ensure that, when we pass on, matters can be dealt with easily and in accordance with our wishes?
We all remember people who have died suddenly, perhaps accidentally or at the very least unexpectedly. Therefore it is important to consider these issues as soon as possible, particularly when one has dependents. So what would I recommend? The very least one need do is execute a will. This can range from being a simple letter to a lengthy document depending on several factors such as the value and complexity of your estate and the number and order of the likely beneficiaries.
But how "simple" is simple? I was for instance struck by some of the material being published in advance of next year's centenary of the outbreak of the First World War. One reads of simple one-line notes written by mere boys being sent to the Front in which they leave all that they own to their mothers. These are extremely poignant and no doubt there will be many more moving discoveries as the anniversary of that conflict draws nearer.
In principle then, provided that a will can be recognised as genuine and final – the "last will and testament" – it can be a very simple document. Indeed the clearer, the better. The essential named players are the testator (the person setting out their wishes for distributing their estate), the executor (or executrix if a lady) who is the person or people charged with managing the estate in the event of the testator's death, and the beneficiaries. The last category is where the difficulties normally arise – read on.
The executor can be an individual and is often a family member or trusted friend. A second option should be included in such cases to cover the possibility that for any reason the first named choice may be unable, or unwilling, to do the job. Professional firms, such as Sovereign, can be used and this is often recommended for more complex estates where demands in terms of time and expertise may be great, or where disputes may otherwise arise. It is a sad truism that the richer the prize, the more likely there is to be trouble – which can last for years and profits no one but the lawyers. The notorious fictional case of Jarndyce v Jarndyce in Charles Dickens's Bleak House concerns a large inheritance that drags on for many generations before legal costs devour the entire estate.
No matter how simple or complex the estate, one should be careful about the temptation to use one of the "ready-made" versions of a will that can de found online for less than 50 pounds. These may be suitable where assets are negligible but otherwise caveat emptor. In my work I see many cases where a poorly drafted or unsuitable will creates problems. The old expression about "spoiling the ship for a ha'porth of tar" seems rather apt and may not be how you would want your heirs to remember you.
Making a will is of course just the first stage in succession planning. More complex estates may involve several classes of assets and a complex range of beneficiaries. In the case of higher value estates, the use of trusts – sometimes known as "living wills" – may offer great advantages to the testator and beneficiaries alike. This is an area I would like to explore further in next month's article.
I said at the beginning that everyone should consider executing a will and, preferably, sooner rather than later. In some cases more than one. If you live in Gibraltar, for instance, but are lucky enough to own property in Spain, it may be sensible to execute a Spanish will too. It will make dealings with the Spanish authorities very much easier. A separate document could cover any assets in Gibraltar. As always, professional advice would be needed to ensure that your wishes are clearly set out, readily understood and achievable in a foreign country. You should also ensure that the physical location of the wills, if not kept at home, is known to your next of kin to avoid misunderstandings when the time comes.
There is a further good reason to set out one's personal wishes clearly – the increase in second (or more) marriages that follow higher rates of life expectancy. Like me, many readers will know of widowed parents who have re-married in much later life. More and more middle-aged people are acquiring step-parents, who often have families of their own. In such cases the importance of protecting all parties is paramount.
But what about people who do not have a large estate? Perhaps someone who has already disposed of their assets by giving them away to relatives or by indulging in what some now refer to as "ski-ing" – spending the kid's inheritance (and why not by the way?). I have often heard it said that it's not worth the expense and effort of writing a will where there are no assets to speak of. After all, intestacy is not that important if there is nothing to inherit, right? I disagree. A will can cover many other matters such as someone's wishes for cremation or burial, the type of service, the music or even the future care of pets. Indeed, within reason, it can any number of aspects in one readily accessible and legally binding document. It can be of great comfort to those making arrangements that they are providing the right send off – and can save embarrassment when one is asked why that Frank Ifield track was played in church (yes, I am as old as I look!).
If final wishes are not properly set out, tremendous difficulties can ensue. In a recent British case, a donation was left to "the government of the day". Clearly this was intended for a worthwhile cause, but – until a media storm of protest – it ended in political party coffers instead. Another case recently publicised revealed the existence of a multi-million pound bequest left by someone for "the public good", which had since grown enormously in value but could not be used because the testator's wishes had not been sufficiently clear.
You probably didn't pick up The Gibraltar Magazine today expecting to read about such mortal matters. Few of us like to contemplate our own demise but perhaps – and you have read this far after all – you would agree with me that it is surely better to look after the interests of those people, institutions or causes that you care about while you are still of sound mind. So check that you have an up to date will in place and, if not, take remedial action. In my view it's also worth seeking professional advice if this will provide additional peace of mind. You can then rest easy knowing that you have done all you can to ensure that your final wishes will be acted upon.
By Ian Le Breton – Managing Director – Sovereign Trust (Gibraltar) Limited
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
