Give your family a lasting act of kindness—prepare your estate plan now

Creating a Last Will and Testament if you reside in the BVI is both good for you and your loved ones. Having a Will is the cornerstone of an estate plan and one of the most fundamental acts of kindness you can show toward those you care about. A Will not only puts your wishes to paper, it helps your heirs and beneficiaries avoid unnecessary hassles following a difficult loss, and may save them time and money. Having a Will is good for you, too. You will gain peace of mind knowing that a life’s worth of possessions will end up in the right hands and that the appropriate person will be designated to settle your affairs and honor your wishes.

Yet, many adults delay or entirely avoid planning their estate and it is easy to understand why: Writing your Last Will and Testament is not the most pleasant of tasks, after all, you are not only acknowledging the inevitable, you are actively planning for it! Therefore, it may help to gain some basic understanding as you proceed.

When is the best time to prepare your Will and other estate documents?

It is never too early to plan your estate. Simply, estate planning is the process of anticipating and arranging, during one’s lifetime, for the proper disbursement of possessions. It can also ensure that your wishes regarding such things as health care directives are met should you become incapacitated, or that your dependents are cared for in the manner to which they are accustomed.

Having a Will and other estate planning documents prepared when you are first building your assets is equally as important as when they’ve grown. Regardless of how little you own or how insignificant in value you think your possessions are, your assets do not disappear upon death. Even if you only own one piece of jewelry or a bank account with a modest balance, someone will “legally” need to take care of their disposal. Therefore, now is always the best time to prepare your estate planning documents. You can always alter them should your circumstances change.

Getting Your House in Order

Some may choose to believe that death comes only to the aged, but the reality is that you should be ready for whenever that time comes. When I was a child, my mother would say that we should “always keep our house clean as we never know when someone will pop by unexpectedly for a visit.” I am sure that death was not one of the ‘visitors’ that my mother contemplated, but the point she makes certainly applies. We want to ensure that our house is in order; that our dependants are taken care of financially; and that all of the wealth we have amassed, either modest or great, is passed on to those who we want to inherit from us.

Likewise, I heard someone joke that “if you want to be remembered or talked about after you die, borrow money from everyone you know and don’t pay it back!” Joking aside, an estate plan is very important for ensuring that proper arrangements are in place to satisfy any debts that you may have. You do not want to leave others with added burdens during a time when they would much rather be honouring your memory. That is why you owe it to yourself and others to get your house in order.

Making Your Will is Easy!

A Will is the easiest way to detail all that you want to happen to your estate and who is to take charge and distribute it in accordance with your wishes. There is great value in making a Will, and the practical advantages are undeniable:

  1. I control what happens to my property after I die.
  2. I do not leave my legacy with the pitfalls that follow dying “intestate.”

Intestate is the legal term for a person who dies without leaving instructions as to how their assets, or a specific asset, are to be distributed – essentially, dying without leaving a Will.  Where persons die intestate, not only are their assets in limbo, the law ultimately decides (not them, their family, or loved-ones) who controls their estate, who should benefit from it, and what portion each person should get. It is important to note that the dictates of the law often contradict the wishes of the deceased. And that is why you should prepare a Will. In the same way that you would not expect a stranger to know your favourite colour, you cannot rely on the law to know your wishes and distribute your estate accordingly. Download this diagram, which illustrates the path of intestacy in the BVI.

Can I change my Will?

Your circumstances and wishes may evolve over the course of your lifetime and your estate planning documents can, too. In fact, it is recommended to revisit your documents every few years, but especially following any life changing events such as marriage, childbirth, change in income, home purchases, divorce, inheritance, and the like. A good rule of thumb: Review your Will every two or three years to be safe.

It is possible that your Will or other estate planning documents may never need to be updated. Or, you may choose to update them regularly. The decision is yours. But know that the only version of your Will that matters is the most current one in existence at the time of your death—signed by you and witnessed by others—because it will need to be “proved,” legally known as probate.

What is Probate?

The English noun “probate” derives directly from the Latin verb probare – to try, test, prove, examine. In law, probate is the legal process whereby a Will is proved in a court and accepted as a valid public document that is the true last testament of the deceased. The granting of probate is the first step in the legal process of administering the estate of a deceased person, which involves resolving all claims and distributing the deceased person’s property under a Will. But what happens if the deceased person does not have a will? Probate still applies.

Where there is no Will, the law dictates who is entitled to take out probate in your estate and the order of priority of those persons. This is why a Will is extremely beneficial. It will eliminate unpleasant procedures and unpredictable outcomes. For example, it may come as a surprise to learn that in the British Virgin Islands a grandchild has no right or legal standing to take out probate in his or her grandparent’s estate—where no Will exists—unless they can show that their parent died before the grandparent. The practical implications of such scenarios can be unusually troublesome.

However, efforts are underway to review and reform the existing laws governing estate succession in the BVI. But until such laws are revised, it is critical that all adults make a Will in order to avoid the pitfalls of the imperfect laws that are currently in place.

Taking the First Step

Putting your wishes in writing is a smart approach to an unwelcome reality, but beyond that your Will must also be properly prepared and validated. Selecting experienced legal counsel is a good place to start. There are several things to consider when selecting that important partner, who will ideally be qualified to help you navigate estate planning and probate.

First, it is important that the attorney you choose is someone with whom you feel comfortable and can trust over the long term. Second, they should be able to carefully walk you through the process and uncover any unique requirements fairly quickly. Third, your attorney should be knowledgeable in probate matters to ensure continuity should anything out of the ordinary occur. It is not uncommon for a probate to be disputed and end up in litigation.

To illustrate, we have seen where land in a probate came under dispute and became unusable due to too many parties unable to form an agreement—some already dead, others not found. In such events, the risk of the Crown or squatters getting the land is a high probability. Therefore, you will want to know if your attorney is capable to handle such matters, or if not, ask if they have a relationship with a qualified probate “litigation” attorney. Select your counsel, wisely.

In conclusion, although surprisingly few persons bother to make a will or prepare estate planning documents, having an estate plan is good for you and for your loved ones. An estate plan provides peace of mind and will ease the burden on those left to probate an estate. Of course, no one really wants to think about death and dying, but passing intestate is a very unsettling and unwelcome reality. It is never too early to get started on your estate plan. Or, where you have previously validated documents, to review and revise them.

 

About the Author

Jenelle Archer is a senior associate, dual qualified to practice in the British Virgin Islands and Trinidad & Tobago. She advises on an extensive range of property, local business, and estate succession matters, such as the acquisition, ownership, and disposal of real estate; property development and financing; corporate and tax structuring; business licensing; and obtaining probates. Her expertise also includes counsel to foreign nationals and entities on obtaining the relevant regulatory approvals required for the acquisition of property in the British Virgin Islands. She is a Notary Public of the British Virgin Islands.

About O’Neal Webster

O’Neal Webster has a pool of skilled lawyers with vast experience in developing estate planning documents in the BVI. They are qualified to work with families and individuals, both local and international, through probate and beyond. Several of the firm’s lawyers are members of the working committee tasked with revising current laws governing estate planning and probate in the BVI. In this regard, we encourage you to sign up for our free email alerts at onealwebster.com and stay informed on new developments that might impact your estate plan, as they become available. O’Neal Webster welcomes your call. To set up an appointment, please contact the author, Jenelle Archer, at 284-494-5808 or by email at JArcher@onealwebster.com.

O'Neal Webster is a leading offshore law firm in the British Virgin Islands providing superior legal services to clients globally. The firm is a member of Lex Mundi, the world's largest association of independent law firms.

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