A will is a legal document that sets forth your wishes regarding the distribution of your property and the care of any minor children after your death. In a will the testator states what should happen to their property (estate) when they pass away. The document also nominates a person (executor) responsible for managing the deceased testator’s property until its final distribution. If you die without a will, those wishes may not be carried out. Further, your heirs may end up spending additional time, money, and emotional energy to settle your affairs after you’re gone.
BENEFITS OF HAVING A WILL
DISTRIBUTION OF ASSETS
A will allows you to specify how you want your assets, such as property, investments, and personal belongings, to be distributed among your loved ones. It ensures that your wishes are respected and reduces the chances of disputes among family members.
GUARDIANSHIP OF MINORS
If you have minor children, a will enables you to name a guardian to take care of them in the event of your death. This ensures that your children are looked after by someone you trust and reduces uncertainty and potential conflicts surrounding child arrangements.
REDUCING FAMILY DISPUTES
A will can help minimise family conflicts and disagreements by clearly outlining your intentions. It provides a legally binding document that can help prevent disputes among family members regarding the distribution of assets.
FUNERAL ARRANGEMENTS
A will can include instructions regarding your funeral and burial arrangements. By specifying your preferences in advance, you can relieve your loved ones of the burden of making these decisions during a difficult time.
APPOINTING AN EXECUTOR
A will allows you to name an executor, who will be responsible for carrying out the instructions outlined in your will. This person will handle tasks such as asset distribution, settling debts, and resolving any legal matters related to your estate. Such a nominated executor will then be exempted from providing security to the Offices of the Master for handling your estate.
BUSINESS SUCCESSION PLANNING
If you own a business, a will can outline your wishes regarding the transfer or sale of your business interests. It ensures that your business is handled according to your instructions, preserving its continuity and protecting the interests of your business partners or employees.
TAX IMPLICATIONS
Through proper estate planning with the assistance of a professional, you will be able to minimise taxes on your estate to be paid after your death.
PEACE OF MIND
Creating a will provides peace of mind, knowing that you have taken steps to ensure your loved ones are taken care of and that your assets will be distributed according to your wishes. It offers a sense of control and reduces uncertainty during a challenging time.
APPOINTING AN EXECUTOR
You can appoint any one you think is capable of being an executor, but the Master has to approve the appointment. You should also remember that the role of the executor of your estate can be an onerous one and one that may be best suited to someone with the right skills to do such a job. Appointing a professional may incur a fee, but that fee may be worth paying to minimise problems for your heirs.
The executor needs to wind up your affairs by settling any debts and paying outstanding taxes, recording all your assets and investments, drawing up a liquidation and distribution account, completing an estate duty return, and filing the documents with the Master of the High Court. Once the account is approved, the executor must distribute what remains in your estate in line with your will or the Intestate Succession Act.
If you do not appoint an executor in your will, your family can nominate someone, but it must be someone the Master of the High Court believes is capable of being the executor of your estate. Getting approval for the right person can delay the winding up of your estate.
It may be a good idea to appoint a professional executor, especially if your estate is large or complicated, or to appoint a professional to act with a trusted family member as a co-executor.
Some attorneys and trust companies, especially those in banks and insurance companies, will offer you a free will, provided you name the trust company as the executor of your estate. They will then charge your estate an executor’s fee.
THE CARE OF YOUR CHILDREN AFTER YOUR DEATH
If you die without a will, the other parent of your child, or children, will be the sole guardian.
However, if you do not have a will and you and your spouse die simultaneously in, for example, a car accident, or if the other parent is no longer alive, the High Court will appoint a guardian for your children.
You should also be aware that minor children cannot inherit cash or investments from your estate. The Administration of Estates Act stipulates that cash left to a minor should be paid into the Guardian’s Fund. If you die without a will, any cash or investments due to your minor children will then the paid into this fund. This fund is administered by the Master of the High Court for the benefit of minors and other people incapable of managing their own affairs. The guardian of your child will then need to apply to that fund each and every time he or she needs money for your child’s living expenses. When your child turns 18, he or she can claim the money from the fund.
If you write a will, you can specify that you want the guardian of your child or children, to manage the money. Alternatively, you can use your will to set up a testamentary trust. This trust only comes into being when you die. If you are unsure of the ability of a surviving parent or guardian to manage the money, a testamentary trust managed by well-chosen trustees may be a good solution. A testamentary trust can also be used to manage property for the benefit of minor children. If you leave property to a minor child, that property cannot be sold without the permission of the Master of the High Court. Trustees can, however, make decisions about property, including selling it, for the benefit of a minor.
KEEPING YOUR WILL UP TO DATE
- When you have a will, be sure to keep it up to date. If your financial or personal circumstances change, make sure you revisit your will and update it. For example, if you divorce, remarry, have another child, or one of your beneficiaries dies before you do, you will need to update your will.
- If you take on debt or acquire property, be sure to check what could happen in your estate should you die.
- If your debts and taxes cannot be settled from cash in your estate, property may need to be sold to generate cash to do so. You can prevent this by taking out life cover.
- Keep an up-to-date list of your assets and investments with your will so it is easy for the executor to identify these after your death.
- Keep copies of your marriage and divorce agreements with your will.
IT IS A MYTH THAT YOU ONLY NEED TO DRAW YOUR WILL UP ONCE
It is vital that you update your will after significant events such as marriage, divorce, or childbirth take place. Your loved ones will be greatly disadvantaged if your will is not up to date and something happens to you. If your current will does not include recent property acquisitions or financial investments, you might want to consider including it in an updated will as soon as possible. Therefore, it is advisable to review your will every 5 years.
CAN YOU DRAW UP A WILL BY YOURSELF?
Yes.
IS IT ADVISABLE TO DRAW IT UP YOURSELF?
Yes.
It is crucial to be mindful of the strict minimum prescribed requirements that must be complied with for a will to be valid. Imagine the tragedy of making an error due to ignorance and it rendering your will invalid. It is therefore advisable to contact a professional to either draft your will or to check it for its validity.
16 TO 20 SEPTEMBER 2024
Our firm participates in the country-wide “Free Wills Week” that this year falls from 16 to 20 September 2024, in conjunction with the LSSA National Wills Week.
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.
