Nearly three-quarters of South Africans haven’t planned what will become of their estates after their death, according to recent statistics from Masters of Courts. Often, setting up our Last Will and Testament makes us painfully aware of our own mortality, and for that reason many people put off attending to it, sometimes until we know that we are about to die from a life-threatening disease. As unpleasant as it is to think about such things, you may not always have forewarning of your death, and likewise, not everyone is blessed with a naturally long life. It is incredibly important to take a moment to make the appropriate plans for what your wishes are and commit them to a Last Will and Testament before it’s too late.
Who your property is passed on to depends on whether you have a valid will or not. Wills can distribute your property, name an executor, name guardians for children, forgive debts and more. If you do have a valid will, then your property will be divided according to your wishes stated therein. Having a will also means that you, rather than the government, decide who gets your property when you die. If you die without a will (called “intestate”), then your property will be divided amongst your immediate family according to the laws of intestate succession.
How can I create a will?
In order for your will to be valid, it needs to be compiled in the proper way, but if you are older than 16, you have the right to create a will. In its most simple form, a will states who you would want your property to go to when you die.
The following criteria must be followed when creating a will:
- You must be mentally competent when you compile your will, meaning you must understand the consequences of creating a will and that you must also be in a reasonable state of mind when you do so.
- Your will must be in writing in order for it to be valid.
- Two people older than 14, who are not your beneficiaries, must witness the creating of your will.
- Both you and the witnesses must initial every page of the will and sign the last page.
- You can appoint an executor in your will. An executor is the person who will make sure that your property is divided according to your wishes, as set out in your will, and he/she will also settle your outstanding debts. If you don’t choose an executor yourself, then the court will appoint someone – usually a family member.
- To avoid the possibility of creating an invalid will you should approach a qualified individual, such as a financial advisor or lawyer, to help you draw one up.
The main benefit of creating a will before you die
A key benefit of having your will drawn up by a professional is that they will expertly guide you towards leaving a concise and enforceable will, as well as advising you on the many other legalities that can have grave consequences, such as leaving cash to people in your will. Legally, these cash amounts must be paid out in full first, before the remainder of your estate can be inherited by your spouse or children. This can mean that your kind gesture of leaving half a million rand to your favourite nephew could result in assets, such as your furniture, car and even your house, having to be sold to create liquidity to meet these cash donations if there isn’t enough cash available in your estate. This kind of act, as well-meaning as it is, could lead to the loss of the family home.
What are the risks of not having a will?
Without a valid will your estate will be divided according to the rules set out by the law, which states that a married person’s property will be distributed equally to your closest blood relatives – usually a spouse and children. Should you not have a spouse or children, then your property will be distributed to other family members. The end result could mean that your assets are sold or split up against your wishes, and some of your assets could be given to someone in your family that you did not intend to benefit from your estate. Likewise, if you live with someone but are not married, the law will not necessarily recognise your partner as a beneficiary of your estate, unless you name them as one in a will. And, if you have no blood relatives at all, the property is given to the government.
Even if you believe that your family are capable of dividing your possessions amongst each other and so there is no need for a will keep in mind that there will be delays in dealing with your estate, and if your family are relying on their inheritance for an income this could be detrimental to them.
To discuss creating or updating your will, contact Trustfocus to arrange a free consultation with one of our skilled consultants:
CAPE TOWN – 021 979 2501 / firstname.lastname@example.org
PRETORIA – 012 943 0201 / email@example.com
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)