Even in this day and age, many people in the country do not have a legally valid will when they pass away. This means that in the eyes of the law, this person passes away ‘intestate’.
Many of us know that having a last will and testament helps those that remain to handle your personal responsibilities and wishes in the ways you’d have wanted. Without an up to date Will, your affairs fall into the Intestate Succession Act and may not unfold exactly as you would have liked them to.
Why is having a last will and testament so important?
A will ensures that your assets and personal possessions are divided up among those individuals you want to inherit them. Without a legally valid document setting this out, your estate won’t necessarily be bequeathed according to your wishes. Your wishes about who should inherit what is being carried out depends on having a valid and up-to-date will.
“The percentage of working South Africans without a legally binding last will and testament in place remains high,” says Deputy CEO of Discovery Life, Gareth Friedlander. According to the Master of the High Court, the percentage is still around 70% to 75%, and has been hovering there for some time.
Financial planners, advisers and even law firms have been trying to drive home the importance of changing this in recent years. Perceptions are central to some of the problems associated with the need for a will. For one thing, many people believe it’s only necessary to even start contemplating a will once you reach a much older age. Yet, the reality is that reaching an older age is not guaranteed for anyone.
What happens if you die without a will?
“In South Africa, we have the ability to legally choose how an estate plan will be executed after we are gone. This all hinges on a legally valid last will and Testament. Without one, our legal system does have laws in place that allow a person’s estate to be divided among remaining relatives – namely a spouse and children, or even siblings and parents (where there is no spouse or children). These are laid out in terms of the Intestate Succession Act,” says Head of Legal Services at Discovery Life, Harry Joffe.
In some instances, extended family members may benefit from a person’s estate if there is no immediate living family member, such as a spouse, child, parent or sibling. In this instance, the legal system will assess extended family in terms of relationship degrees and consider relations such as aunts and uncles
While there are legal provisions in place to manage the assets and possessions that a person without a will leaves behind, problems can arise that make the process a little more difficult.
Aside from assets you would have preferred to be inherited by someone specific being handed over to someone else, other challenges of an intestate scenario include:
- A lengthy process to appoint an appropriate executor (who can also end up being someone who you would not have chosen while alive)
- Additional fees and costs – these can quickly add up and become significant
- Confusion, frustration or even conflict among remaining loved ones who do not have a clear outline of what you would have wanted
- Without a will, you cannot set up a trust to receive assets or cash on behalf of minors. Cash will then end up going to the Guardian’s Fund
- Without a will, you cannot nominate a guardian for your minor children both parents die at the same time
- Without a will, you cannot distribute offshore assets
Many South Africans continue to live their lives underestimating the value of having a will in place. “Understanding its importance, as well as the potential repercussions – for example, administering an estate in terms of the Intestate Succession Act can be somewhat costly, lengthy, and emotionally intense,” Friedlander says. “Avoiding that kind of effect can be done with a proper and legally binding last will and Testament.”
“The fact that so many South Africans do not have a valid will in place is one of the main reasons why Discovery Life is making the Discovery Estate Preserver available which complements a newly developed business, Discovery Wills and Trust Services,” adds Friedlander. “Discovery Wills and Trust Services is a business created to provide our clients with holistic estate planning through professional services that are crafted by industry experts, to ensure that their legacies are fulfilled. In order to supplement these services, the Discovery Estate Preserver will ensure that your client’s family is comprehensively protected against the legal costs and administration associated with winding up an estate.”
What do you need to draft a valid will?
“Before drafting a will, you must think carefully about certain details. In this document, your wishes will become final so they must be clear and well thought out,” Joffe explains.
“You must be sure about things like who will get what, who the legal guardian for minor children under the age of 18 will be; and who you choose to manage your estate as the executor. You can choose a spouse if suitably qualified or even your legal adviser. You can even select two individuals, for instance your spouse, as well as naming your lawyer as a co-executor who can assist your loved one with legal matters.”
“There will be other specific personal details to be considered before drafting or even revising an existing will. For instance, if you have gone through a divorce, you must amend your will within three months. If you haven’t done this, a former spouse can still inherit according to the last will deemed valid by our country’s legal system.”
“The legal requirements for drafting a valid will are tricky,” says Joffe. “Although any mentally competent individual from the age of 16 can draft a valid will, the signing requirements in the Wills Act 7 of 1953 are technical and easy to get wrong.” “It is therefore a good idea to have your attorney assist with the drafting process. That way he or she can ensure that all legal requirements of the Wills Act 7 of 1953 are sufficiently met,” adds Joffe.
Requirements for a will to be valid include:
- A will must be in writing (audio and video statements are not valid)
- Two witnesses must be present during the signing process and must be older than 14 years
- Witnesses must not be mentioned as beneficiaries in any way in the will
- Every page of the will must be initialed, with the last page being signed in full. This must be done in the presence of the selected witnesses
- The witnesses must also initial each page and sign the final page of the will
“In the will, a person should appoint an executor. This is the person’s whose responsibility it will be to ensure that all of your property, possessions and other assets are divided according to your wishes,” explains Joffe.
“The executor also has the right to make certain decisions regarding the estate after any outstanding debts have been settled. For instance, if there are shares in the estate, will they be sold or passed on to the heirs.” “The new Estate Preserver Benefit also ensures a professional executor in the form of a trust company is appointed,” Joffe adds.
Once a will is setup and complies with legal requirements, it must be kept safely along with all the necessary documents that apply to each mentioned asset, including investments, life insurance policies and property.
“You can store these files and your will in a secure safe at home or at a wills storage provider such as a trust company. It merely needs to be in a safe place that can be accessed if changes are required to be made or when the time comes for your wishes to be executed,” says Joffe. “Keeping a will up to date will help to ensure that you leave the legacy of your choice and no heirs are omitted by mistake.”