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The best way to give property to others under your will.

Feature Article The best way to give property to others under your will.
JUN 3, 2022 LISTEN

Introduction
The past few weeks have set many people thinking about what will happen in future when they are dead. The reason is not far-fetched. The Will of a late politician got into the media and it gave fodder to the entire nation. The main subject-matter that motivated the leaks to leak the Will was ostensibly a raging debate about a new law (executive instrument) that has been passed by Government to return portions of Achimota Forest to a certain family. Of course, as it’s now customary in our dear Ghana, the debate took on its full political garb. But in no time, the discussions veered off the intended path and settled on the subject of making wills and the best way to go about it.

I have written elsewhere[1] that there are many advantages that we stand to gain when we make our wills and share our self-acquired properties to our loved ones as we think fit. But the most crucial parts of the will-making process on which most people fail to seek legal advice are first, what properties qualify as one’s self-acquired property and secondly, whether one should give away their properties only in their wills.

What is ‘self-acquired’ property that you can give to another person under your will?

Everyone can make a will and give their personal properties to any person or institution of their choice. But it is not every property we may think we own, or we may have our name on, that may qualify as ‘self- acquired’ property.

Joint property
So in making a will, the main issue to consider is whether the property you intend to give to someone under your will actually belongs to you. So, for instance, if you jointly own property with your husband, wife, friend, brother, sister, business partner, ‘confidante and best friend,’ etc., (as joint tenants, as we say in Law), you cannot give that property to another person under your will. Under such a joint tenancy, when one joint owner dies, the other one who survives takes the property. It is only where you own property with another person as tenants-in-common that you can give your part of that property to some else in your will. The problem is that, as a lay person, it may be difficult for you to know whether you own the property as a joint tenant or as a tenant-in-common.

Property in the name of your company
Another tricky issue for most people when making their wills is that, they consider property bought in the name of their company as their personal property. Usually, such a person will own the shares in the company and will buy properties in the company’s name, thinking that the property ‘belongs’ to her. The question is: who owns such a property? The simple answer is: it is the company. The reason is that, a company is separate and different from the people who set it up. A company exists on its own and can have its own property. So if anyone decides to buy property in the company’s name, the company will take it as its asset. The person who bought it cannot claim that it belongs to her and give it to someone else under her will. The company can challenge the will in court and take its property back.

It is for these reasons that I advise you to seek legal advice and, most importantly, get a seasoned lawyer to help you in advising and preparing your will.

Other ways of planning one’s estate in addition to making wills.

By making gifts to family members whiles you are alive

One other way of managing our estates and properties with less hassle, when we are alive, is by making gifts. We can make gifts of some of our properties to our beloved family members in our own lifetime. That reduces the portion of your estate that must go through the probate process.

By setting up Trusts
In addition to giving out your properties under your will, you can also handle some properties by putting them under a well-managed trust. Luckily, there are now corporate trustees in Ghana who deal in such matters.

Conclusion
It is very important that we make time to plan our estates now that we are healthy, strong and alive. Now is the best time to plan our estates and get our wills and trusts set up and gifts properly made. Considering all the legal implications that may attend the making of wills, trusts, and gifts, we advise that you speak to a lawyer and seek legal advice so in the end, when you are dead and gone, your estate will be properly managed.

FOOTNOTE:
[1] For my earlier article on “10 Reasons why you need a will today”, see: https://fsblawconsult.com/2021/08/25/will-in-ghana/

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