FREQUENTLY ASKED QUESTIONS
A Will is a written instrument/document containing directions/instructions for how the assets of the person making the Will should be divided/distributed upon his/her death.
Every adult should have a Will, regardless of marital status and asset value. It doesn’t matter if you’re single, divorced or married, with or without children, with minor or adult children, or with specific or no specific desires about who gets your property when you’re gone.
- If a person dies without leaving a Will (intestate), or if the Will is not valid for any reason, the beneficiaries of his Estate will be determined according to the Laws of Intestate Succession.
Generally, the law determines who the closest blood relatives are and distributes the assets in terms of this. In Nigeria, the laws of Intestate Succession may be complicated in the case of customary marriage because the different cultures and tribes have variants of this Law, thus each situation will be different, but the important point to note is that a family member you may never have chosen to inherit from you could end up with all your assets.
- In a Will, parents can name whom they want to be the guardian of their minor children. This by far is the most important part of Wills for parents with minor children.
- Your Will can direct that a Trust be set up for your beneficiaries instead of simply giving them lump sums of money. With many people today in second marriages, a Will with appropriate Trust provisions helps in ensuring that your assets ultimately pass to your children after being available for the support of your surviving spouse.
- A Will lets you choose the individual or Trustee to serve as executor of your estate. The executor will manage and settle your estate according to the law and your desires expressed in your Will. Without a Will, your beneficiaries would have to petition the court to appoint an administrator through a Letter of Administration, which can be expensive and which can invite disagreement especially if they disagree as to the person qualified to administer your estate.
- A Will lets you grant your executor full power to sell your property and liquidate your assets without having to petition the court for permission. Without a Will, you wait (after you file) until the court nominates an administrator.
- A Will enables you to eliminate unnecessary expenses and court costs involved in the administration of an estate without a Will.
There are a number of points to remember, including:
- Keep the wording as plain as possible
- When referring to a person use their full name and a short description – for example, my nephew, Tolu Alabi
- Avoid using vague or ambiguous terms
- Ensure that you understand each clause in the drafted document and that the Will reflects your wishes
- Make sure that your Will reflects your current situation at all times.
In brief, a Will should contain the following:
- The identity (full names) of the person whose Will it is
- The beneficiaries of the estate and the distributions of the assets
- It may contain a clause for the setting up of a Trust (for example if beneficiaries are minors or still in school)
- Guardian nominations- to minor children
- The name of someone or a particular company nominated as Executor.
You, being the Testator (male) or Testatrix (female), need to sign each page of the Will, together with two witnesses. Any alteration also needs to be signed in this manner. The place and date of signing must be written in at the end of the document.
Witnesses should be people who have no interest in the Will. Their signatures merely acknowledge that they saw you sign the Will – they do not have to know the content of the Will. Any potential beneficiary or their spouse should not be a witness when signing your Will.
Your Will should be reviewed periodically, especially when there has been any change in your status or circumstances, or those of your beneficiaries, such as marriage, divorce, the birth of a child, etc. We recommend a random review every 2 years in addition to these.
For as little as N60, 000 (or more, depending on your specific needs), we will help you draft your Will and lodge it at the Probate Registry. You will also receive a waxed (sealed) copy of the Will, which you can keep in a safe place.
Dying without a Will is called dying “intestate”. Dying intestate creates additional costs in probating your estate such as the costs and rigors of procuring a Letter of Administration. Dying intestate can also create chaos and confusion among the children, spouses, siblings or parents of the deceased.
You need the following: –
- The Will must be in writing.
- The Will must be signed by the maker of the Will and witnessed by at least two witnesses. These witnesses should not be beneficiaries-persons who will receive property under your Will.
- The signature must be affixed in the presence of two or more witnesses present at the same time.
- The witnesses must attest and subscribe to the Will in the presence of the Testator. To attest is to see the Testator signing, while to subscribe is to sign the Will as proof of attestation.
Other requirements are:
- The will must be voluntarily made and executed by the Testator. This means that the Will must have been freely made without any form of influence whatsoever by any person on the Testator that affects the Testator’s mind in the making of the
- The Will must be made by a Testator with testamentary capacity for it to be
Age: The Law provides that the minimum age at which a person can make a will is 18 years. Certain persons are however exempted from this age requirement, i.e. soldiers in actual military service and mariners or seamen at sea who can prepare valid Wills though under the age of 18 years.
Sound Disposing Mind: The Testator must possess the mental capacity or sound-disposing mind to make a Will. This simply means that the Testator must not be suffering from any disease of the mind or of the body capable of affecting the mind of the Testator in the making of the will.
A Will can only be enforced through a process called Probate. Probate is the legal process through which the court makes sure that, after you die, your Will is valid, your debts are paid and your assets are distributed according to your Will.
Probate is the ONLY legal way to change the title on an asset when the person listed as the owner dies. Only the court can change titles after someone dies.
Your estate plan – whether it’s a Will or Trust – should generally be reviewed every 2 years and more often if you have a major life change such as the birth or adoption of a child, a divorce or marriage, or a significant increase in assets.
Legally, a Will does not take effect until the testator dies and the probate court approves the Will. Prior to death, a competent testator can amend or revoke an existing Will. You can change your Will by writing and signing a new Will or signing an amendment to the Will called a “codicil”. A codicil is a separate document that explains the changes to the Will and you make it effective by using the same formalities as with a Will.
Drafting a Will involves making decisions requiring professional judgment, which can be obtained only by years of training, experience and study. Only a practicing lawyer can avoid the innumerable pitfalls and advise you on the course best suited for your situation.
FCMB Trustees has a team of lawyers who are experts in drafting Wills and offering sound advice on Wills. There are several advantages to having FCMB Trustees draft your Will but one of the major attractions is that you can also name us as Executors, thus ensuring all your wishes are carried out without any form of partiality.
Our staff will be glad to assemble further information for you, analyze your requirements and answer questions not covered here. Please e-mail us at firstname.lastname@example.org or call our office at 01-2902721.
FCMB Trustees is a wholly owned subsidiary of FCMB Group.