Dying without a will can have devastating consequences for the people you leave behind. A will is an important legal document that reflects your wishes and helps to distribute your belongings when you die. People have many reasons for not wanting to write a will such as thinking that their property is not valuable enough and that a will is intended for people who have millions of Rands worth of assets. Others think that a will might create a split in the family or that it will bring bad luck. Others feel that their children are responsible enough to share the property and liabilities among themselves without having to write down instructions. However, none of those reasons are worth the stress that your family will endure if you die without leaving a will.
Why should I have a Will?
So that you can decide who your beneficiaries and the executor of your estate should be after you have passed away. It will also place you in a position to appoint a guardian of your choice to take care of your children, provide for pets and state how to pay your debts.
The best wills are those that clearly reflect the wishes of the will maker. However, it is not advisable to put conditions on your gifts, for example: “I give my house to Thabo if he graduates” or leave property to your pet.
What happens if you die without a will?
- Your estate will be distributed in terms of the law of intestate succession. That is the law that governs the distribution of belongings when a person dies without leaving a valid will, the belongings will be shared between the spouse and heirs according to the law.This may include or exclude people whom you may not have wished to benefit.
- The Master of the High Court will appoint a tutor or curator to take care of the property of your minor children and their inheritance will go to the Guardians Fund. A guardian, whom may be different to the person you wanted to care for your children, may be appointed by the court for that purpose.
- Finally, when a person dies without a will , the Master appoints an executor of the estate.
What are the duties of an executor of a Will?
The main tasks of the executor are to:
- Identify and list all the assets of the deceased;
- Receive payments that are due to the estate such as interest, dividends, investments and other income (e.g. unpaid salary, leave pay and other company benefits)
- Pay funeral bills, outstanding debts, and valid claims against the estate;
- File and pay income and estate taxes;
- Identify who is going to get what and how much and distribute it as per the instructions set out in the Will
Who can draw up a will for me?
It is important to have a person with the necessary knowledge and expertise to draw up your will. A law firm, your bank, or a trust company can do it for you.
You can also write your own will, but you have to make sure that is it legal by signing it and having two witnesses’ signatures. Both witnesses must be of the age of 14 or above and be competent to give evidence in a court of law. Your witnesses do not need to know what’s in your will. Simply gather them around, say ‘this is my will’ and have them sign.
Once the will is completed, you sign and date it in the presence of two witnesses in order for it to be valid.
A beneficiary in a will must not be involved in the drawing up of the document or act as a witness. A person who attests and signs a will as a witness or is involved in the drafting of a will is disqualified from benefitting under the will.
Which documents do you need when drawing up a will?
You need the following documents to draw up a will:
- The name and identification details of the executor of your estate.
- The name and ID number of your spouse and how you are married (in community of property, out of community of property, etc.).
- Copy of a marriage certificate. Did you divorce recently? If so, a copy of the decree of divorce and settlement agreement will be required.
- The full names and ID numbers of all your children including adopted and stepchildren, you wish to benefit from your Will.
- The names and ID numbers of any grandchildren you would like included.
- The name and contact details of a guardian in case you have minor children.
- Details of the assets you wish to be donated to institutions such as a church, hospice, orphanage, etc.
- Details of any other party or institution you wish to benefit.
- Copies of title deeds in respect of immovable properties in South Africa or mortgage bonds thereof.
- Copies of insurance policies, such as endowment policies, life policies, credit life policies etc.
- An inventory of liabilities.
Are there any conditions that can be put in a will?
You may include as many conditions in your will as you like, as long as such conditions are not illegal or contrary to the good morals of our society. For example, you can arrange that your children be given control of their assets at stages of their lives. Usually, these goals are achieved by setting up a trust in your will.
Where should I keep my will?
There is no specific place to keep a will. However, it must be kept in a safe place. Most banks, accountants, trust companies, lawyers and registered financial advisors keep wills on behalf of their clients. It is advisable to make a copy of your will, marked clearly with the word “Copy”. Also make a note on the copy where the original is kept. Importantly, make sure you inform the executor where the will is kept.
Is it necessary to revise my Will?
Wills need to be revised from time to time, especially if important events have taken place. For example, marriage, the birth of a child, divorce, death of a beneficiary or executor or gaining of property.