“WILL” YOU STILL “TRUST” ME TOMORROW?

Articles September 11, 2018

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“WILL” YOU STILL “TRUST” ME TOMORROW?

‘Time flies’ as the saying goes. I am very sure that time really flies for most of us who spend most of our daily life balancing our work and family life. I can’t help it but to think back on what I have witnessed some years ago reminding me how fragile life can be. As we arrive at the end of every year, there will be many wedding dinner invitations and the month of December a few years ago was no different. At the beginning of that particular month, I attended a wedding dinner where as usual, guests were displaying their singing talents on stage. After the second dish arrived, I saw an elderly couple going up on stage and belting out a song. The moment they finished singing, the elderly man collapsed on stage. Suddenly, relatives and friends rushed onto the stage. Then one man was seen to be giving the elderly man first aid resuscitation.

Apparently, his heart had stopped. After fifteen minutes, an ambulance arrived and quickly brought him to the hospital. I was told by my friend later that he was pronounced dead on arrival at the hospital. Once the ambulance left, the master of ceremonies at the wedding informed the guests that there will be a ten-minute interval and the hall was filled with the sound of silence. After ten minutes, when the master of ceremonies recommenced the event by inviting again guests to come up on stage and sing, I noticed that none of the elderly guests went up and I guess at that point, they must be thinking that life is really precious. With that, we were all entertained by the Gen-Y group for the remainder of the night.

Having witnessed this for the first time especially at a wedding dinner, I thought this would be the first and last incident for that year. However, a few weeks after this incident, I was totally shocked and saddened by the death of my good friend who was killed in a tragic mountain biking accident. This happened just one week after I spoke to him. His Christmas message to me and my family was his last message. He was in his mid-forties at the prime of his career with such a bright future and I was sad to lose a good friend and at the same time see his young family lose him. I guess the good die young.
With two of these incidents, it serves as a reminder to all of us how fragile life is, and death can strike anyone at any age. As I look back, I would like to think that they have gone to heaven and in a much better place than on earth. I would also like to assume that they had already got their affairs in order by leaving instructions in their will to give their wealth to their loved ones. However, I still can’t help but think about those who have not prepared their will. Assuming that in both cases, no will was prepared and taking the example of the elderly man who collapsed on stage, I could foresee that the family may have some problems extracting his parent’s death certificate for the application of the Letter of Administration (L.A.) if his parents had died a long time ago.
The application for L.A. is for those who died intestate (that is, without a will). Under the Malaysian Distribution Act 1958 (amended in 1997), when a person passes away without a will, the distribution will be ¼ to the deceased’s spouse, ¼ to the deceased’s parents and 1/2 to the children. These are the lawful beneficiaries who will be appointing the Administrator first before the family can deal with the distribution. Therefore, if his family who survived him are only his spouse and children, then the extraction of the deceased parent’s death is crucial in order to show proof that they are no longer around and paves the way for the distribution of 1/3 to the spouse and 2/3 to the children. In the absence of the death certificate, the family will not be able to kick start the application of L.A.

By taking the second example where a person passes away without a will, leaving behind his family such as wife, minor children and parents, then the issue of renunciation may surface. For instance, if the wife feels that she should be getting all her deceased husband’s assets so that she could preserve and utilize it for the funding of her children’s well being, then she may have to ask her parents-in-law to renounce their entitlement of ¼. Now, the next question is whether the parents-in-law will do it because in some cases they may need the ¼ of their entitlement. This kind of uncertainty can lead to confusion and misunderstanding among family members. One of the complication of intestacy is that all assets will be shared by all the beneficiaries. So property ownership would have a possibly long list of names and even more names will be included when the family member who inherits it passes away. That’s the reason why it is always best to have your will done to avoid the hassle.
When a person prepares a will , he / she is called the Testator and they are empowered to choose their Executors / Trustee to administer and distribute their estate according to their wishes. An Executor / Trustee can be any Individuals or a Trust Company whom the Testator trust. The minimum age for a person to be an Executor is 18 years old and above. But for a person to become a Trustee , he/she has to be 21 years old and above. The choices of Executors really depends on the Testator’s family circumstances such as relationship between them and family members. In addition, if there are minor children in the family, then it makes it more important and crucial to choose someone who can be trusted to handle this job. Otherwise, the other alternative would be a “Trust Company because a Trust Company have the advantage of continuity, experience, knowledge and professionalism.

If a family have minor children, then it is again important to choose a guardian who is 21 years old and above for the children just in case both the parents passes away. Therefore, the choice of a guardian really depends on the relationship between the guardian of your choice and your children. It is always advisable to discuss with the person of your choice and get their consent whether they are willing to undertake this role.
After appointing the Executors/Trustee and Guardian, then the next matter will be setting out the structure of your estate distribution. The structure of distribution depends again on the family dynamics that is, whether you have a young family with minor children or a family with all adult children. If you have a family with minor children, then one of the main thing to factor in into your will would be a “Testamentary Trust” if both you and your spouse passes away. This type of “Trust” in the will is merely laying down the condition of distribution for the “Trustee” to distribute to the minor children progressively for their Living , Medical and Education expenditure. This is because the estate may not be distributed to them directly due to their minor age at that point of distribution.
Whereas , if your children are all adults , then your spouse would most likely be the main choice as beneficiary unless there are some relationship problems which makes it unsuitable to choose your spouse. Otherwise, after choosing your spouse it is quite common to choose your children if your spouse predeceased you and then followed by your decision on your mode of distribution whether it is in equal shares or different percentage.

By stating all of the above in your will after considering the pros and cons, you would at least get some peace of mind because you have stated all your wishes in your will and it will speak for you upon death. Actually, I would like think that the will is asking all of us whether Will you still Trust me tomorrow ?