Wills

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.

Some of the most commonly found reasons, though not valid at all times, are:

• Inviting trouble – many feel that if they think about writing a Will, they would actually cause their death or misfortune.
• Good understanding among children – others feel that their children are responsible enough to share the property and liabilities among themselves; therefore a Will is not important.
• Property is not valuable enough – some people feel that unless you have property worth millions, a Will is not needed.
• There is enough time for drawing up a Will – many people feel that they are too young to think about death. They feel that only people who are on their death beds should consider drawing up a Will.
• Creates rift in the family – drawing up a Will could cause conflict among family members.

If you die without a Will, your estate will be distributed in terms of the law of intestate succession. This may include beneficiaries whom you may not have wished to benefit or may exclude persons whom you would have preferred to benefit.

The Master of the High Court will appoint a tutor or curator to take care of or administer the property of your minor children and their inheritance will go to the Guardians Fund. A guardian, who may be different to the person you would have preferred to care for your children, may be appointed by the court for that purpose.

When a person dies intestate, the Master appoints an executor of the estate.

The main tasks of the executor or executrix 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);
• Give notice to creditors to prove their claims;
• 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; and
• Realise assets which require to be realised.

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 help you in drawing up a Will. Once the Will is fully completed, you sign and date it in the presence of two witnesses in order for it to be valid. Both witnesses must be of the age of 14 or above and be competent to give evidence in a court of law. A person must be of sound mind (as a test of his/her ability to give evidence in court). A beneficiary in a Will must not be involved in the drawing up or attesting to a Will as witnesses. A person who attests and signs a Will as a witness or is involved in the drafting of a Will is disqualified from benefiting under the Will.

You need the following documents or information 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 and mortgage bonds thereon.
• Copies of insurance policies, such as endowment policies, life policies, credit life policies etc.
• An inventory of liabilities.

The above items will form part of your checklist which can assist you when drawing up your Will.

In many instances, Wills are used to direct when and how the bequests should pass to the beneficiaries. You can arrange that your children be given control of their assets at stages of their lives. For example, the first one-third of their inheritance becomes available at the age of 21 with the remainder at the age of 25 years or, if there is a good reason, even later. Usually, these goals are achieved by setting up a trust in your Will. If you do, you will also need to provide the full particulars of a trustee and the terms of the trust. A Testator may include any and as many conditions in his will for so long as such conditions are not illegal or contrary to the good morals of society.

The purpose of a trust is to protect the interests of your dependants at a stage where they are unable to do so themselves. A lawyer, a bank or a registered financial advisor can assist you to set up a trust. A trust can own property, receive donations and inherit money from your estate when you die. What makes a trust so secure is the fact that its decisions are taken by the trustees you appoint when you create it. The beneficiaries can only claim their benefit at the age or time provided in the Will.

It is not a wise idea to do your own Will. Professionals should draft Wills. The Will must be clear, concise, represent the true intentions of the Testator and meet certain legal requirements for it to be valid. Wills drafted by those with little or no experience usually lead to problems. Remember: when a Will “speaks”, the person who made it is no longer there!

The government levies estate duty, which is a form of tax, on the estate after your death. No estate duty has to be paid if your estate, which may include property, insurance and money, is worth less than an amount of R 3 500 000. However, your estate will have to pay 20% estate duty on any net amount over R3 500 000. Estates are also subject to Capital Gains Tax.

There is no specific formal place to keep a Will. However a Will 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.

Wills need to be revised from time to time, especially if important events have taken place in the life of the Testator. These events may include the birth of a child, marriage, divorce, death of a beneficiary or executor, gaining of property that is not part of the existing Will, etc.