Why Draft a Will?

If you pass away without leaving a will (known as dying 'intestate'), your estate will be distributed between your beneficiaries in accordance with the legal statutes that are applicable. Your family members will have to follow the clearing-off principles to determine who is entitled to become the representative of your estate, and then actively administer the same and distribute it amongst your beneficiaries according to criteria set out in the Act.

The Cayman Islands have broad testamentary freedom, which means you are effectively allowed to leave your assets to anyone as you please. However, one must note that certain countries and/or states that operate under civil law, have strict rules as to who benefits from all or part of your estate, irrespective of whether you have a will.

If you wish, you can decide on who to appoint as the representative of your estate. The benefit of having a local representative who is familiar with the Cayman Islands legal system cannot be overstated. Their familiarity with the rules could save your estate from significant expense, not to mention alleviate the stress placed on bereaved loved ones who may otherwise find themselves having to negotiate the requirements of a country and legal system they may not be familiar with.

Worldwide Assets

Proper estate planning can limit your estate’s exposure to certain taxes upon your death. Long term residents often incorrectly assume that being domiciled in the Cayman Islands (which does not have estate taxes) automatically means that their estates and assets located in other localities are exempt from jurisdictional taxation rules. It can be an incredible and unnecessary shock to beneficiaries to suddenly have part (or all) of an estate subject to heavy taxes. As such, in certain circumstances it will become both smart and necessary to draft multiple wills for each jurisdiction within which your assets are located or consider the creation of certain trust structures.

Drafting a Will

Take advice from an attorney to make sure your will is unambiguous, clearly sets out your wishes and meets legal requirements. Attorneys can also provide additional services such as the retention of your will. Remember that the beauty of a will is that it can be rewritten or amended at any time, assuming you meet the legal requirements to do so. Review your will periodically to make sure it still reflects your wishes.

Children

Consider what will happen to your children if you and your spouse or civil partner were to pass away suddenly? Who will care for them and how will your estate continue to fund them?

Use your will to appoint your child’s or children’s guardians and create structures which empower the trustees of your estate to invest, apply and manage your assets in the best interests of your child or children. Drafting a will can ensure that your beneficiaries’ needs are tended to with the same level of care and careful management of your estate.

Living Wills

The Health Care Decisions Act provides a framework for advance healthcare directives (better known as living wills) about medical treatment before a person becomes terminally ill or mentally impaired and is no longer able to make such decisions. This Act provides for matters such as do-not-resuscitate orders and restrictions on the type of treatment to be administered. Speak with your local attorney about this legislation and take steps to ensure your wishes are properly recorded. It will ease the emotional burden placed on relatives and help guide health care providers when end-of-life decisions need to be made.

Letters of Wishes

A letter of wishes sets out additional, non-binding requests and generally holds all of those items that we take for granted, but which are only known to us. Simple instructions include where your life insurance policies, annuities and pension plans are held.

Setting this out in a letter of wishes will save your representative hours of digging through papers and making telephone calls trying to determine where your assets are held. Giving precise details can save your estate from potential losses due to unidentified assets. Your attorney will ask you to fill out an instruction sheet with the following information:

Family Information

What is your full name, date of birth and home address? What is the full name of your spouse and children, their dates of birth and addresses? Were there any previous marriages, or children from that previous marriage?

Key Roles in your Will

  • Names and addresses of your proposed executors and your relationship with them.

  • Name and address of guardians to your children, if your children are young.

Gifts

  • Pecuniary bequests – These are legacies of cash that you may want to leave to someone. Include their names, addresses and the specific amount.

  • Legacies of property – Identify the specific item/property that you want to leave someone, as well as their full name and address.

  • Beneficiaries of the rest of your estate – This is whatever is remaining in your estate and can be given to one person, or it can be divided equally, or unequally, between several people. This is called the ‘residue’ of your estate.

  • Substitute beneficiaries of your estate – Name a substitute to inherit your estate should the named beneficiaries die before the estate can be given to them.

  • Age of inheritance – Specify an age when your beneficiaries inherit the residue of your estate. This is only really relevant if your beneficiaries are very young at the time of you writing your will.

  • 'Worst case scenario’ gift – Name a charity, family member or friend who will inherit your estate if everyone you have named in your will dies and cannot inherit it. If you have named someone in your will and they die before you, you need to specify if you would like the gift to pass to their children.

The final portion of the will requires you to list your assets, liabilities (mortgages and outstanding debts), any life insurance policies you may have, as well as the details of your pension plan. You will need to estimate a value for each of these and indicate whether they are owned by you alone or shared with your spouse.

Cayman Law Firms that Specialise in Wills