A will is not the privilege of the wealthy; it is the right of all South Africans who want to plan their legacy while they are still alive. Anyone who has assets and who wants to reduce the emotional and administrative burden on their loved ones when they die, should have a will.
The reasons many people do not draft a will include the misconception that their estate is not large enough to warrant it and the usually ill-fated assumption that there is a “good understanding” among their children over how the estate should be divided. Many young couples believe it is “too early” to plan for their death and delay preparing a will – sometimes with devastating consequences.
If you die intestate (that is, without a will), your estate will be distributed according to the law of intestate succession. This may result in people you wanted to exclude from your estate inheriting some or all of your assets.
Under the law of intestate succession, the Master of the High Court will appoint a curator to administer your estate. Any assets that need to go to your minor children will be placed in the Guardians’ Fund until they are old enough to inherit them. The State will appoint a guardian to take care of your children, and he or she may not be the person you would have chosen.
Who can draft a will?
Although anyone can draft a will, a will must meet certain legal requirements to be valid. Simple errors can have serious consequences. For example, if a beneficiary acts as a witness to the will, he or she could be disqualified from inheriting. It is strongly recommended that an estate planning expert drafts your will, regardless of the size of your estate.
What is an executor?
The executor (or executrix in the case of a woman) 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, who you feel confident has your best interests at heart. Preparing a will gives you autonomy over who winds up your estate, instead of leaving this vital responsibility to the State.
What is a guardian?
If you have minor children, it is imperative to name and appoint in your will a legal guardian to your children. The guardian will take custody of your children and will be legally entitled to care for them until they reach adulthood. Leaving the guardianship of your minor children to the judgment of government authorities is less than ideal and can be avoided by making this provision in your will.
What is a testamentary trust?
A testamentary trust is a trust that is set up in terms of your will and comes into existence only on your death. It 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 the children are old enough to manage their financial affairs on their own. As the testator (the person whose will it is), you can choose who you want 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?
You should revise your will when certain significant events occur, such as marriage, the birth of a child, divorce, the death of a beneficiary or executor, or if you acquire an asset that has not been inlcluded in your existing will. The failure to keep your will up to date may result in heartache or bitterness if, for example, a child does not inherit, or an estranged former spouse inherits contrary to your intentions. It is best to review your will once a year to ensure that it reflects your desired legacy.
Where should I keep my will?
You should keep your will 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 another 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 draft a new will, which must explicitly revoke all previous wills and codicils (additions or supplements to a will).
• Sue Torr is the managing director of Crue Invest, a financial planning practice in Cape Town.