By Christel Botha
Estate planning means making a plan for taking care of your nearest and dearest and dealing with everything you own and owe when you pass away. A will or testament is a legal document where you leave instructions on how you want your family to be taken care of, and who will inherit assets like property, jewellery, cars or investments that you own.
Drawing up your will is one of the most important documents of your lifetime, and it is crucial to understand the roles and responsibilities of those who are linked to it. Here’s a quick guide to help you make sense of important terms used in wills.
The person making the will is called the testator. A will comes into effect at the time of or after the death of the testator. In South Africa, you can draft a will if you are 16 years or older, are mentally capable of making a will, and understand the consequences of your actions.
Your first consideration would be taking care of your loved ones when you’re gone. Dependants are any people you are legally responsible for supporting financially like your spouse or all children (biological or adopted), or people you support financially even though you are not legally responsible for them. A spouse is your permanent life partner or civil union partner.
Who will be taking care of your minor children?
The natural guardians are the biological parents of a child who is under 18 – a minor child. If there is no longer a natural guardian for your children, you can nominate a guardian in your will. However, the High Court must appoint this person before they can act as guardian. A guardian is responsible for helping minors in matters in which they are legally unable to act. The guardian will administer the property and take care of the minor children, whereas the trustees of the testamentary trust will usually administer the assets. The trustees are people or institutions appointed to manage the capital and income of the trust’s assets for the benefit of the beneficiary.
What happens if you die without a valid will?
If you die without a valid will, you die intestate and the government appoints an executor to your estate. An executor is an individual or trust company appointed to administrate the estate of a deceased person. If you have minor children, the surviving parent will be the legal guardian. A survivor is a person who survives after another has died.
However, if both parents die at the same time, the state will need to appoint the guardian and this may not be the person you would have chosen. Any assets from an intestate estate that are given to minor children will be administered by the Guardian’s Fund, which is run by the Master of the High Court. A Master of the High Court serves the public. Officers in the master’s office are entrusted with controlling and supervising the administration of deceased estates, insolvent estates, minors’ interests, trustees, etc.
Who can benefit from the proceeds of a trust or will?
A beneficiary receives a reward or benefit from your estate as outlined in your will. An organisation could also be a beneficiary. A legal heir means any person who is entitled to inherit the property of a deceased person under a will or in terms of succession laws. A legatee is named in your will to receive a specific bequest or gift from you. If you bequeath a large sum of money to your domestic worker, she would be considered a legatee. A nominee is somebody who will receive an asset on the death of the owner or policyholder.
What happens if your child passes away before you do?
If you leave your estate in your will to your son and daughter in equal shares but your son passes away before you do, you may cater for substitution to your children’s children. Then when you, the testator, die, your son’s share of your estate will pass to his children. Per stirpes, or by representation, is a legal stipulation which requires that if a beneficiary dies before the testator, the beneficiary’s share of the inheritance will pass to their biological children (this includes legally adopted children). This means that each branch of the family receives an equal share of an estate.
How many witnesses do you need?
You must sign your will in the presence of two witnesses or acknowledge in their presence that the signature is yours. A witness to a will must be at least 14 years old and capable of testifying in a court of law. It is not necessary for the witnesses to know that the document that is signed is a will. They merely need to verify that the signature is yours and that at the time of the signing you were of sound mind and were not forced to sign it. The witnesses must be unbiased. Heirs, legatees or other beneficiaries in the will and their spouses, executors, trustees and guardians and their spouses may not act as witnesses. A blind person can sign their will by making a cross or fingerprint in the presence of a Commissioner of Oaths together with the two witnesses.
It is important to understand these terms when signing your will to ensure that the document represents your wishes when you are no longer alive to speak for yourself. You may find assistance from a qualified estate planning professional helpful when faced with completing this vital document.
Christel Botha is a fiduciary services manager at Alexander Forbes.
*For more on wills and estates, read the September 2021 issue of our information-packed IOL MONEY monthly digital magazine.