Yes, I know. You don’t want to think about it, much less talk about it, which is why I have been getting shifty looks from most of my expat network this week when I asked them the seemingly simple question: “Do you have a will?” Want to know how many people said “Yes”?
Two. Out of about thirty people, all of whom have high net worth, children from at least one relationship, and often dual citizenship / resident status. A little worrying, no?
I can’t claim the moral high ground – we recently unearthed our Will, dusty from 10 years in an unmarked cardboard box in a storage container in Walthamstow. Not exactly accessible in the event of our demise, and even worse, was so out of date that the paperclip holding it together was rusty and the Feisty One was not even mentioned. So on her behalf, I am doing something about it… Here goes.
I have a new dirty word: intestate. For those of you who have been living a carefree life of blissful indifference, it’s what happens when you don’t have a will. For non-expats, the implications are unpleasant: it gives the state responsibility and control over the division of your estate, decisions about who will take care of your dependents, the timeframe it all happens and (of course) access to a large chunk of your assets via taxes.
It’s a simple fix – a Will. It’s the document that tells those left behind what you want to happen to your dependents and estate. Most of us overthink it, imagining a torturous process requiring three weeks of desperate hunting for title deeds and old bank statements. Nothing could be further from the truth – the best wills are simple statements of intent, which give executors something to work with and a few clues about where you have hidden your treasure. Combine that with a good estate planning lawyer and you will create a plan that saves everyone time, money and heartache at a time when they are most vulnerable.
Introducing first part of the Defining Moves “Ducks in a Row” program. Our aims are simple:
- To inspire you to act. Right now. Because this is important.
- To get you to the lawyer on time. We want to prompt to you think, discuss, list and plan, so that any legal advice you get is based on reality, not just the bits you could remember in the car on the way to the lawyer’s office. And make sure that when whoever prepares your will asks a question, you know the answer and are not paying $300 per hour for them to watch you think about it / argue with your spouse / try to remember whether or not you mailed the last life insurance premium.
So grab your pencil and paper, and let’s get started…
Step one: The People.
There are three groups of people you need to consider when drafting a Will;
- your dependents
- your beneficiaries
- your executors
These are the people who rely on you for some sort of care, support and/or protection. Traditionally, these were children still living at home, but modern families are often complicated with blended families, shared custody arrangements, adoptive children, elder relatives and even pets added to the mix. Thankfully, lawyers have seen it all before, and, even better if you have a family as nutty as mine, are sworn to secrecy…
Make of the list of those who you are responsible for, whether physically, socially, financially or legally, and the type of care you provide. Keep it simple – the rest can be figured out later – at this stage, your task is to create a comprehensive list.
Now list any special circumstances that will have to be addressed. For many families, this may involve shared custody, child support or special needs but for expats there may also be issues of differing nationalities, citizenship and resident status that may have tax and legal implications.
For those of you with your own business, bear in mind that you may also have professional responsibility for continuity of care of clients – check your licensing organization or professional code of conduct if you are unsure.
Your beneficiaries are the recipients of your estate – usually immediate descendants, siblings, friends and charities. Typically, assets are divided equally between your children, so if you want to use a different split, make this clear to your lawyer so that they can prevent your will being subject to legal contest. Note also that laws differ about division of assets when you die intestate – half siblings, step and adoptive children are often treated differently, and the portion of the estate automatically assigned to the spouse varies widely internationally.
If you have any other people or organizations who you want to leave money to, add them to your list now.
Executors, Financial Guardians and Legal Guardians.
It’s your group of guardian angels, so pick wisely. These are people who you trust to administer your estate and make sure your wishes are carried out, to care for your dependents and to manage the finances of the beneficiaries if they are unable to do so. The roles carry huge responsibility, so discuss whether or not your intended choices are both willing and able. They can be family members, friends or lawyers; typically, lawyers are paid (and aren’t given custody of the children…) whereas family and friends are less likely to be.
Note that guardianship differs from child custody: while custody refers to the physical care provided by a parent (who may have no legal powers), legal guardianship may involve physical and/or legal custody, and continues until the child reaches adulthood or the guardian’s death. By contrast, especially in the modern family, custody is far more flexible and changes according to the situations of the parents.
Here’s where expats need to be especially careful, because the local laws may be very different to those of your home nation and custody / guardianship arrangements and next of kin may not follow familiar rules. In the UAE, for instance, if no will is in place, Sharia law prevails, meaning that assets and custody of children potentially follow the male line – your husband / partner’s parents, brothers and sisters. How is your relationship with your mother-in-law, by the way?
Step Two: The Money
Your estate is the sum total of your assets, and while many of you will be rolling your eyes that I am pointing out the obvious, I can guarantee that there will be plenty of things that you will have forgotten. The temptation is to run to the filing cabinet / junk drawer and fish out the most recent bank statement, and start noting down numbers, but don’t. Your assets are constantly changing, so you only need to include categories – current and savings accounts, property, jewelry stocks, shares, businesses, investment accounts, life insurance, digital assets (websites, videos etc) – and where those assets are held. For a starter list, click here for pdf cheat sheet.
While you are making your list, make note of who your beneficiaries are, and how they are reported. Typically, life insurance goes to the spouse, but in a world where divorce rates run at about 45%, there are a huge number of exes who are still listed as primary beneficiary. Take note, and make any necessary changes…
Step Three: The Decisions
Now that you have the information, you can start making decisions about how to pass on your legacy, human or otherwise. Your key priorities are the welfare of your dependents, so start with those and work from there.
Guardianship of dependents.
Who do you want to care for your dependents if you are no longer around to do so? Depending on the complexity of your family and the types of dependents, there may be more than one answer to this question, so set it all out clearly, naming each dependent individually. Talk to all the parties concerned before you head to the lawyer’s office – you may be surprised to hear who your children would hate to live with, or which relative is intending to move to Outer Mongolia next month – to prevent return visits. Factors that may affect your decision are not just emotional – also consider location (how will your children feel about leaving the country, for instance), age and health of potential guardians, relationship with other friends and family, support network and financial ability to provide care.
Include financial provision for your dependents and decide who you want to manage your estate for them if they are still minors. In many cases, life insurance helps to cover the cost of raising children, but once you include the cost of college education it may not go as far as you think.
Financial, legal and professional dependent provision will require discussion with your lawyer and with those who you nominate to take over; the good news is that if planned in advance, the process is straightforward (and certainly infinitely preferable to leaving your legal advisor / executor to try to unravel the mess in your absence).
Step Four: The Division
This is the fun bit, providing you have money to leave. But before you start divvying up between your offspring and the local cat protection league, here are a few pointers:
- Remember that your debts and liabilities (taxes, funeral expenses, etc) will be deducted from your estate before the remainder is distributed. You can offset many of these by establishing a Trust, which will will talk about in the next chapter, but for the moment, just remember to include your loans, debts and other obligations when you are cataloging your estate.
- Ensure that you own your assets outright before you will them away. Anything jointly owned needs careful consideration to avoid passing on a headache rather than a well-intentioned gift. If you hadn’t already discussed future plans with the co-owner(s), now is the time to do so.
- Now is not the time to make a point. Sure, you may have favorites, but remember that in many cases you are not just leaving behind a bequest, but a lifetime of family discord and ill-feeling – not to mention legal challenges. It may seem a lovely idea to leave the bulk of your estate to your newest grandchild/ favorite nephew or next door neighbor, but the resulting fallout can often sour the best of intentions. The same rules apply for property – find out which mementos, furniture or jewelry are most loved by your friends and family, and divide accordingly, informing all of them who has been given what. That way, any discussions, disagreements or disappointments can be directed at you, rather than unwitting recipients.
- While we are on the subject of leaving objects to people, think carefully about whether they want them, and the responsibility you are handing over. It’s difficult to part with things, no matter how ugly, unwanted or expensive to maintain without feeling disloyal to the person who gifted it.
Now you have done the difficult bit, it’s time to put pen to paper and make a rough outline to take to the lawyer’s office. If you are an expat, you may be advised to get legal input from both your home and host nation perspective – while the laws of your home nation usually take precedence, extended residence overseas may change the rules, so be sure to explain the situation rather than making assumptions.
You need to include:
- Your name, and identifying details (usually your address, but if you are an expat, you will need to clarify your domicile (primary place of residence) with an experienced lawyer – it has significant tax and legal implications.
- Names of beneficiaries; the people and organizations you want to leave your assets (whether money, housing, land, stock options, digital assets etc ).
- The name of your executor (the person responsible for making sure your wishes are met).
- Guardians of your dependents – Legal and physical.
- Who gets what.
- Your legal advisor should also include a “residual clause” that states the recipient for any assets you forgot to mention, or have been accrued since you wrote your will. “I bequeath any residue to” should take care of it.
- Signature and date, with initials and date on every page.
Congratulations if you made it to this point- you are well on your way. In the next post, we’ll be introducing the fun stuff.. Planning your funeral, Living Wills and frustrating the tax man.
Bet you can hardly wait.
Nolo.com – Legal encylopedia – Wills
USA.gov – advice on writing both social media and regular wills.
UK Citizens Advice Bureau information on writing a will.
Australia. gov – Resources on wills and power of attorney