Having a Will is not the privilege of the impossibly wealthy. It is the right of every South African who wishes to plan their legacy while they are still alive. Anyone who has assets and/or minor children, and who wishes to lessen the burden on their loved ones, should have a Will. The drafting of a Will is a carefully-crafted gift and an act of love towards those who are dear to you.
Why do so many people die without a Will?
The reasons for not preparing a Will range from misconceptions such as one’s estate is not large enough to warrant it, to ill-fated beliefs that there is a ‘good understanding’ between one’s children as to how your estate should be divided. Sadly, many young couples believe that it is too earlier to plan for one’s death and delay preparing a Will – sometimes until it is too late. As Buddha is claimed to have said, “The problem is you think you have time.” You are never too young, too poor or too busy to prepare a Will.
What happens if you die without a Will?
If you die intestate (i.e. without a Will), your estate will be distributed in terms of the law of intestate succession – and may mean that certain unintended beneficiaries inherit from your estate. The Master of the High Court will appoint a curator to take care of your estate, and any assets left to your minor children will go to the Guardians Fund where they will be administered by authorities until your children are old enough to inherit. In addition to this, the State will appoint a guardian to take care of your children – and it may not necessarily be the person you would have ideally chosen.
Who can draft a Will?
Although anyone can effectively draft a Will, a Will must meet certain legal requirements in order for it to be valid and it is strongly recommended that an estate planning expert drafts your Will – regardless of the size of your estate. Simple errors such as allowing a beneficiary in your Will to sign as a witness can result in him/her being disqualified from inheriting.
What is an Executor?
The executor (or executrix in the case of a female) performs a vital role of winding up your estate and distributing your assets to your nominated heirs. It is therefore important to appoint someone with sound financial and administrative skills, and who you feel confident has your personal best interests at heart. Rather than leaving this vital role to the discretion of the State, preparing a Will gives your autonomy over who you wish to wind up your estate.
What is a guardian?
If you have minor children, it is imperative to name and appoint a legal guardian to your children in your Will. Should you die, the appointed guardian would take custody of your children and would be legally entitled to care for them until they reach adulthood. Leaving the guardianship of your minor children to the judgement of government authorities is less than ideal, and can be avoided by making provision for a guardian in your Will.
What is a testamentary trust?
A testamentary trust, which is set up in terms of your Will but only comes into being upon the death of the testator, is designed to protect the interests of your minor children. All assets bequeathed to your children will be managed by the trust and its appointed trustees until they are old enough to manage their own financial affairs. As the testator, you can choose who you wish to appoint as trustees, and can also stipulate at what age the assets will transfer to your children.
How often should I update my Will?
The need to revise one’s Will is generally triggered by certain events such as the birth of a child, marriage, divorce, the death of a beneficiary or executor, or gaining property that is not part of your existing Will. Failure to keep one’s Will updated may result in heartache such as where certain children don’t inherit or where one’s ex-spouse unintentionally inherits from your Will. Our advice is to review your Will once a year to ensure that it still reflects your desired legacy.
Where should I keep my Will?
Ideally, one’s Will should be kept in a fire-proof safe and its whereabouts should be known to your loved ones. It is also advisable to keep a copy of your Will in an alternative location, or with your lawyer or financial planner.
What if I can’t find my Will?
If you have misplaced your Will, it is strongly recommended that you have a new Will drafted. In your new Will, you would need to explicitly revoke all previous Wills and codicils.
Far from being a complex legal document designed for those who have amassed enormous wealth or as a tool for over-controlling testators to ‘rule from the grave’, a Will should be seen as a final gift of love that has less to do with you, and more to do with those who are left in the wake of your death. In the words of John Allston, “the only thing you take with you when you’re gone is what you leave behind.” What are you leaving behind?
Have a wonderful day!