Having a Will drawn up is an unnecessary expense; I don’t need one? The question you should be asking is can you afford to die without a will? In this article, we’ll unpack this question.
What is a Last Will and Testament?
A Last Will and Testament (often shortened to a Will) is a binding legal document that sets out your final wishes regarding the distribution of your assets (these can include but are not limited to property, capital, investments or vehicles.) Should you die intestate (without a valid Will), these wishes may not be fulfilled, and your estate will be distributed in terms of legislation regulating Intestate Succession or In terms of the intestate succession act 81 of 1987. Furthermore, this can make the resolution of your estate much more complex, costly and time-consuming for your nominated beneficiaries.
What if I die without a will?
Dying without a will (legally called dying intestate) has numerous implications for the allocation of your assets and children.
If the deceased individual doesn’t have a Will, their wishes wouldn’t be considered. It’s likely that the children may be placed in foster care and possibly live with someone with whom they don’t know, or perhaps someone who the deceased didn’t trust. The children’s best interests should always be meticulously considered when a decision regarding guardianship needs to be made.
A living spouse (or spouses) and descendant(s): each spouse will inherit R250 000 or a child’s share, whichever is greater. The child(ren) will receive the balance of the estate, and if a child is deceased as well as a descendant(s), the child’s portion will go to their surviving spouse and dependants.
Assets and other earthly possessions
Your estate (the assets you owned at the time of death) will be distributed according to the Intestate Succession Act; it’s also known as the rules of intestate succession.
- If you die without a Will but have relatives, the Succession Act will decide exactly who the beneficiaries will be. They can include a spouse, biological children, adopted children, parents or other blood relatives.
- If you don’t have a valid will the intestate succession act is applicable. This Act states who inherits how much from your estate. If you don’t have any family or if the Executor of your estate is unable to find any of your family members the money will be held in the Guardian’s fund and if there have still not been claims after 30 years, the money will only then be forfeited to the state. Also, if your closest family member is a minor, any money will also be held in the guardian’s fund until they reach adulthood.
- If you have minors or adult beneficiaries who are mentally disabled, having a Will is imperative because minors and mentally disabled individuals do not have the capacity to inherit. In a will we can provide for a testamentary trust to be erected after the testator’s death. The minor/ disabled individuals share will be held in trust until such time that the beneficiaries are able to inherit.
- An executor is an individual or institution that resolves your estate. You are allowed to nominate anyone to be an executor in your Will. If you die intestate, the master of the High Court will appoint an executor dative.
I’ve changed my mind; what do I need to have a will professionally drafted?
Circumstances that would necessitate a professionally drafted Will include:
- You are married
- You have children
- You have a business or shares in a business
- You are divorced
- You are cohabiting with your life partner
- You have children with special needs
- You have foreign assets
How do I know if my Will is valid?
It’s vital to understand that specific steps need to be taken to ensure a will is valid. The requirements for drafting a valid will are contained in section 2(1)(a) of the Wills Act 7 of 1953. The requirements are not too difficult to understand; however, what may seem like a minor oversight to you, could invalidate the Will. Therefore, it’s in your best interests to contact a business consultancy that can provide you with immediate access to financial and legal experts who will meticulously check every facet of the Will.
The court has the authority to condone a Will that doesn’t comply with all the requirements. This is done so that any situations which may invalidate a Will are lessened. Still, it’s recommended that you follow the formalities. Litigation to condone a non-compliant Will, could drastically reduce the remaining value of an estate due to legal costs.
The credible resource hub, LexisNexis, provides an accurate, concise outline of the basic requirements of a valid will.
Fio Founder and CEO Ajay Wasserman comments on the importance of choosing the right person or institution to serve as the executor of your estate in your Will.
“The executor that you nominate inside your Will is the person that will be resolving your estate; it’s generally an attorney, accountant or qualified financial adviser that can assist you in resolving this estate. You can also have a family member as the executor of the estate. Still, to do that, you are putting a family member in the position to make emotional decisions while resolving your estate. So, I would not recommend that you have a family member as their executor of your estate because they will react emotionally to your death. They might make decisions when they resolve the estate that isn’t in the best interest of your wishes as well as your beneficiaries nominated in your Will.”
For more information about an executor, please read our article, Estate Planning: What Is An Executor Of An Estate?