Five myths about estate planning debunked
Durban - According to 2017 Master of the High Court's figures, over 70% of South Africans don’t have a Last Will and Testament. In a country where legal marriage is rare and blended families are the norm, this can present difficulties for your loved ones in the event of your passing away.
National Wills Week is marked in South Africa from 16 to 20 September.
“National Wills Week is an opportunity for you to contact an attorney to assist you with drafting a will for free. Everyone should have a will that dictates how their assets should be distributed upon their death because in the absence of a will, legislation chooses your heirs,” says Faeeza Khan, Senior Legal Marketing Specialist at Liberty.
There are a variety of myths around wills and what happens to your estate after you die.
We have a common law marriage (or lobola was paid) so I’ll inherit from my spouse - Many people incorrectly assume that if they’ve been living together for long enough, they’re married in the eyes of the law. Khan says, “There's no such thing as a common law spouse in South Africa. Should your partner die without a will, you won't inherit a cent because the Intestate Succession Act doesn’t recognise partners as spouses for purposes of intestate succession.”
I'm healthy and have decades left to live, so I don’t need to worry about a will - The reality is that you could die at any time and in the absence of a will, your death could leave your loved ones destitute. But it’s not only your Last Will and Testament that has the power to turn your and your family’s lives on their heads, it’s others’ as well.
“If you accept a guardian nomination in terms of a will and are appointed as a legal guardian of someone else’s children, you're legally obligated to look after those children. And if those children’s parents haven’t left you enough money to look after them, then you’re obligated to do so with your own money,” says Khan, “So it’s always a good idea to talk to your loved ones about where you all stand in terms of your last wishes.”
The money that my children need will go to them - “South Africa’s Intestate Succession Act says your spouse must receive the greater portion of R250 000 or a child’s portion. It doesn’t matter how old they are or if they still need money for schooling," says Khan. “Likewise, foster children do not qualify as heirs in the intestate estate of parents. Only your natural or adopted children are considered heirs for intestate succession purposes, unless your will says otherwise.”
My parents will be taken care of - Just like in the case of children, the law prioritises your legal spouse first and foremost. And again, according to Khan, the law only recognises biological and adoptive parents, “If you are a foster child and pass away without a spouse or children and without a will, your foster parents will not inherit from your estate, regardless of the fact that they may have raised you.”
The money will ultimately go to who I wanted it to go to - Because of the rules of the Intestate Succession Act and the bloodline form of succession, blood or adoptive relatives will always be the first to benefit from your estate, regardless of the strength of your relationship with them.