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The Importance of Having a Will in Place

The importance of having a will cannot be overstated. A Will (also known as a testament) is a legal document that outlines how your estate should be distributed after your death.

It is never easy to think about death, and discussing and planning for it is unsettling. However, it is a practical and crucial step for you and your loved ones’ sake. Death is inevitable, and its consequences don’t just affect you but also those around you.

In this article, we will importance of having a Will.

What happens if you die without a Will?

Drawing up a Will is about taking control of your assets and possessions and taking care of those you leave behind.

If you pass away without a Will, in the eyes of the law, you would have passed away ‘intestate’.  This means that your estate will then dissolve in terms of the Intestate Succession Act 81 of 1978.  Your estate will be divided amongst your surviving children, spouse, parents, or siblings according to a set formula and not according to how you might have wanted it to be divided.  There might then be beneficiaries that you did not wish to inherit from your estate and those that you truly care for might not benefit at all.

If you die ‘intestate’, the process to officially appoint an executor may take time and the executor that is appointed might not have been your first choice. An ‘intestate’ death also means that no trust can be set up for any minor beneficiaries and their inheritance will be sold for cash and deposited into the Guardians Fund.

Why is a Will important if you have children?

As we have mentioned before, the topic of death, especially with children, is no easy task. And while every family’s situation is unique, death is inevitable.

If one parent dies “intestate”, the remaining parent will usually be the children’s legal guardian. However, if both parents die simultaneously the children might be placed in the care of someone they do not know or trust. Therefore it is crucial to have a Will that clearly states who you nominate as the guardian over your children in case of the simultaneous death of the parents or if you are a single parent.

If you die without a Will and the child is a minor, the inheritance will be managed by the Guardian’s Fund which was created by the government to receive and manage money on behalf of persons who are considered to be legally incapable of managing their own affairs.

However, with a valid Will in place, you will be able to set up a trust and nominate your own Trustees. The Trustees will manage your children’s inheritance according to the Trust Deed that will clearly outline the power that they will have and how the money should be spent, for example at what age the children should receive the inheritance or how the money should be paid over to the guardian to maintain the children.

Do you only need to draw up a Will once?

It is very important that you update your Will if something significant happens in your life such as marriage, divorce or childbirth take place.  The reason for this is that your loved ones will be disadvantaged if your Will is not up to date and something happens to you.  If your current Will does not include recent financial investments or property acquisitions, you need to consider updating your Will as soon as possible.

Do you need a professional to help you draw up a Will?

Can you draw up a Will by yourself? Yes. Is it advisable? No.

It is crucial to be mindful of the fact that South African law has strict procedures and requirements when it comes to Wills and it places a lot of emphasis on authenticity and validity.

It is therefore advisable to contact a professional with the necessary legal knowledge, such as an attorney, to either draft your will or to check it for its validity

Attorneys have the needed legal knowledge that will ensure that your Will is clear, concise, and reflects your true intentions. And they also understand tax and other financial implications that go hand in hand with dividing your estate.

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Drawing up a Will is not only a responsible step but also an essential one to ensure that your assets are distributed according to your wishes, that your loved ones are cared for, and that the legal process is efficient and cost-effective. The peace of mind that comes from having a well-drafted will is invaluable, and it is a thoughtful way to protect your legacy and provide for those you hold dear.

Reach out to our team of experienced attorneys to draw up a Will tailored to your specific circumstances.

Please note that the information provided in this blog post is general in nature and should not be construed as legal advice.

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