Funding a trust may be better than making a will

THE EDITOR, Madam:

I am writing this letter with reference to the article, ‘Chuck wants the making of a will mandatory in Jamaica’, published in The Gleaner on July 25.

Governments in the US, Canada and the UK cannot legally legislate laws, making it mandatory for citizens to have a will.

In general, a will is a private document, unless and until a grant of a probate is issued. While the testator (person making the will) is still alive, with limited exceptions , nobody other than the testator is entitled to receive a copy of the will.

Following the testator’s death, unless and until a probate is granted, the will remains a private document, although the executors named in the will are entitled to see it.

The problems mentioned in the article are not unique to Jamaica. They are universal problems and they are worse in the US, Canada, and the UK than in Jamaica.

I would suggest avoiding probate. One way is to execute and fund a trust. If all of your assets are in a trust, they will pass through your trust instead of undergoing the probate process. The probate process typically lasts for 12 to 16 months in Virginia. I do not know how long the typical process would last in Jamaica.

Another way to avoid probate is to add beneficiary designates or ‘transfer on death’ or ‘payable on death’ designations on your bank accounts and other assets. These designations allow certain assets to pass directly to your beneficiaries, instead of going through the probate process.

If you have an estate valued at less than US$15,000 in Virginia, you can avoid probate altogether. It is better to have a trust than a will, because having a trust is a huge cost savings.

If you have a will and you may need to probate your will, you will have to retain the services of will and probate lawyers and pay them huge sums of money to represent you in a probate court. The probate judge is needed to validate the legality of your will.

I am not implying that everyone should not have a trust or a will, all I am doing is to provide information to help.

CARGILL KELLY