By Titi Adegbile
3.1 THE MEANING OF ‘ESTATE’
Whatever you own from a house to personal effects is your property and forms your estate.
3.2 THE MEANING OF ESTATE PLANNING
Estate Planning is the process of anticipating and arranging for the disposal of an estate during a person’s life. Estate planning typically attempts to eliminate uncertainties over the administration of a probate and maximize the value of the estate by reducing taxes and other expenses. However, the ultimate goal of an estate plan is determined by the specific goals of the client and may be as simple or as complex as the client’s needs dictate. Guardians are often designated for minor children and beneficiaries in incapacity.
3.3 THE MEANING OF ‘MONEY’
The definition of money in a will is taken to mean all cash held, including your loose cash whether in a purse or wallet or hidden under the bed. It may also extend to a range of cash investment accounts, depending on the context in which the will is written. For clarity, when making a will, use the term ‘money’ in its strict sense and refer to other financial assets e.g., bank accounts, specifically.
3.4 THE MEANING OF ‘TESTATOR’
This refers to a deceased person who has left a legally valid will.
3.5 MEANING OF ‘EXECUTE A WILL’
This refers to the completion and signing of the will.
3.6 THE MEANING OF ‘EXECUTOR’
An executor is a person who is named by you in your will to see that your wishes are carried out in accordance with the will, collect in the estate, pay any debts or expenses and then distribute the remainder to the named beneficiaries. The Executor’s duties commence immediately when death occurs and these duties cease once the estate has been distributed to the named beneficiaries.
You should always appoint a couple of executors of your will. Before naming that person in your will, it is best to ask him or her if he or she is willing to take on the duty. It is useful but not essential to appoint someone who has had previous business experience. Whoever is appointed, once the appointment is accepted and actions taken in respect of the estate, he or she is obliged to carry out your exact wishes.
It is useful, though not essential, to name more than one person so that if one decides not to act, there will still be someone else already appointed and familiar with your wishes.
If only one executor is appointed and then turns down this role, the probate Registry will apply its rules to decide who should act in his or her place.
3.6.1 Who can be appointed As Executor?
You can appoint a close friend or relative or firm of solicitors, accountant or your bank to be the executor of your will. Trust Companies are now very actively involved in Estate and Wills Administration. A person who is a minor or person of unsound mind will not be allowed to act in this capacity. Please be aware that if professionals agree to act, then a fee raised against the estate will be charged. This is called a charging clause and will have to be written into the will, stating that fees and expenses will be paid by the estate.
3.6.2 Can an Executor charge for services rendered?
Unless specified, a non-professional Executor cannot charge a fee. A private individual who acts as an Executor and incurs expenses in carrying out those duties can claim back these expenses from the estate. However, he or she is not allowed to charge for time spent carrying out these duties. If in an official capacity, an Executor takes time off work and as a result loses money, then he or she is able to reclaim it from the estate as ‘out of pocket’ administration expenses.
3.6.3 Unwilling Executor
If you have been appointed an Executor but feel, for whatever reason, after the death that you cannot act, then you may renounce your executorship. You will be asked to sign a form of renunciation either by the Probate Registry or by the solicitor acting for other persons named in the will.
3.6.4 Who has the upper hand: Professional Executor or other Executors?
A professional who has been named as one of your Executors does not have an overriding right over other Executors to administer your will. Each executor has an equal right to hold estate assets and apply for probate, with the agreement of all named Executors. Joint applications can be made.
3.6.5 What an Executor needs to know
- Being an Executor takes more time than some people are willing to give.
- Being an Executor requires finding competent professionals to work with.
- Being an Executor requires people and management skills.