While death is a certainty, what happens after death need not be.

For our own benefit, and more importantly for those we leave behind, it is critical that we make our wishes known. Regardless of the size or value of your estate, insufficient thought and consideration to your end of life matters can translate to complications post-death.

Why bother with a will?

Simply put, if you have no will, upon death, your assets fall to be distributed according to the laws of intestacy under the Intestate Succession Act 1967. The laws of intestacy provide for what would usually be considered fair distribution to the surviving family members. Where for instance, you pass away leaving a spouse and children, the spouse will receive 50% of your assets, and the children, the other 50%, in equal shares.

If you die without a will, your lawyers would have to apply for grant of letters of administration, rather than a grant of probate. There are a few more steps in the application for the former, resulting in relatively higher legal costs and more time required to obtain the grant.

For instance, where there is a minority interest in the estate i.e. beneficiary under 21, the would-be administrators are required to put up an administration bond for the value of the estate, and sureties are required for the value of the estate. While a dispensation of sureties is usually obtained, this is an additional hurdle for the administrator(s) to meet.

In addition, there will also be the issue of deciding who should be the one to administer your estate if you do not leave a will.

Section 18(2) of the Probate and Administration Act 1934 provides that the Court has the discretion to grant the letter of administration, and it will consider the interest of the parties in the estate.

Generally, the starting point is that the one with the greatest entitlement to the estate under intestate rules is the one most suited to be administrator. However, there may be occasions where the person(s) with the greatest entitlement is immobile or getting on in years, or is uncontactable. In such instances, clearing those who have the greatest entitlement to be an administrator creates yet another hurdle.

Also, where there are beneficiaries under 21, pursuant to section 6 of the Probate and Administration Act 1934, it is necessary for at least 2 administrators to be appointed to administer the estate.

This is meant to ensure that the young beneficiaries’ interests are properly taken care of. Practically speaking however, a surviving spouse may find it difficult to persuade another relative or friend to act as co-administrator as the duties may take up a lot of the co-administrator’s time and can extend for years where the children are young.

In summary therefore there are many real and practical reasons to make clear who is to be responsible for administering your estate, and how you want to distribute your estate.