What to bear in mind when drafting a will
If you die without a will, South African law stipulates who will be the heirs to your estate.
You should keep the following in mind before drafting your will:
* Marital status. Your marital regime will determine any legislative implications when leaving your assets to anyone other than your spouse. For example, if you are married in community of property, your and your spouse’s assets will form part of your deceased estate, and your spouse will automatically (by law) be entitled to 50percent of the combined asset value.
* Minor children. Our law prescribes that any benefit to a minor derived from a deceased estate must be placed in a testamentary trust (created in your will) or, where you die without a will, paid over to the Guardians’ Fund held by the Master of the High Court. You can provide in your will that the inheritance of your minor child or children must be administered in trust until the age of 18 years (or any later age that you may prefer). Your nominated trustees manage assets in the best interests of the children.
* Beneficiaries with special needs. A testamentary trust can also provide for dependants with special needs (that is, handicapped children) who require greater care. Your trustees will address these needs.
* Guardians for minor children. Guardians are nominated in your will to look after minor children after the death of both natural parents. Where you have provided for a testamentary trust, the guardians will be able to attend to their responsibility in taking care of your minor children's needs.
* Nomination of an executor. This is the person or company that will take over the administration and management of your estate upon death. To be an executor is not always an easy task, as it requires certain expertise in the field of deceased estates, as well as the law to which it refers.
* Burial preferences. You may indicate in your will whether you wish to be buried or cremated, and leave instructions about organ donation. It is important to note that this is only a wish in your will, and you should discuss these preferences with your next of kin to ensure your wishes are respected.
* Asset and liability details. To ensure that your executor will be able to carry out your instructions according to your will, you will be required to disclose details of your local and offshore assets and liabilities. This is to establish a possible cash shortfall in your estate because of various charges and circumstances - for example, claims against the deceased estate, maintenance claims by a divorced spouse, executor's fees and administration charges.
* Current and future circumstances. Your will should not be regarded as a document that will come into force only when you have reached an advanced age. Death is inevitable and can happen at any time. Therefore, ensure that your will fits your present circumstances and provides for the future.
To ensure that your legacy lives on long after your departure and in accordance with your wishes, seek professional assistance drafting it.
Christel Botha is a fiduciary services manager at Alexander Forbes Retail Sales and Service Distribution.