Johannesburg - Many South Africans die with their estates in taters, not having done enough to ensure those left behind will be able to live on.
An example of such is the current situation with the estate of late rapper Riky Rick and the situation with his partner Bianca Naidoo.
There have been rumblings that she and the rapper were not legally married, and making the situation worse, there appears to be no Will left behind to ensure the distribution of his assets and estate.
It is reported that she has taken Home Affairs to court to recognise her as the late rapper's wife and ultimately, the executor of his estate. The couple got engaged in 2015 and he introduced her to his family. She said Riky "expressed that he wanted a long-lasting future" with her.
“At the time of my acceptance of a relationship with the deceased I lived with my first daughter, who was born out of a previous failed marriage. I expressed to the deceased that unless he was committed to having a stable relationship with a future, I would not permit him to meet my daughter. The deceased expressed that he wanted a long-lasting future with me, and we began living together with my daughter as a family during the same year of 2013 at my residential property bought for me by my parents in Bryanston Gauteng,” reads the court papers quoted by several publications.
This brings to the fore the importance of having one's affairs in order before one dies. One aspect of doing so is having a Will. However, there appears to be a reluctance among South Africans in general around the drafting of Wills. Knowledgeable people often die intestate. The conversation around death, an inevitable consequence of life, is really difficult to have. Yet, the consequences of failing to do so can be very dire.
With National Wills Week running from September 12 to 16, law firms throughout the country will be participating in the Law Society of South Africa’s (LSSA) National Wills Week campaign.
So what could happen to your estate if you die without a valid Will?
Johannesburg-based Attorney, Phumla Nevhusenga of Masina Attorneys and Conveyancers, said the estate planning consequences of dying without a valid Will can be far-reaching and can result in consequences that the deceased neither intended nor foresaw.
“People are ignorant and do not understand the importance of a Will, which is to take care of those left behind and give effect to the winding up of assets. The focus is generally on the funeral cover, rather than succession planning after death for the benefit of their families,” she said.
She added that it becomes more difficult in blended families because people believe they are entitled to more than they are apportioned, and in some instances, they get nothing at all.
“Emotions are difficult to control when more people are concerned, we live in a country with numerous socio-economic issues, poverty and unemployment are rife, and people are desperate to survive and put food on their tables. Without a valid Will, your estate will be distributed to your closest relatives in a pre-determined order which could result in family members unduly benefiting from your estate,” she said.
Nevhusenga stressed that it’s important to have a valid Will, and demarcate and specify all the beneficiaries and exactly what you want to give them.
According to senior lecturer in the Faculty of Law at the University of Pretoria, Dr Rashri Baboolal-Frank, if you die without leaving a valid will, your assets will be distributed according to the provisions of the Intestate Succession Act.
“These provisions are generally fair and ensure that your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationships and those that were dependent on you for financial support,” she said.
In terms of a valid Will, all the children are given a portion of the deceased estate, and in instances where there is no Will, the deceased dies intestate and the marital regime has an influence but, in essence, the children are entitled to a child's portion.
During the LSSA National Wills Week, attorneys participating in the initiative will display posters with their contact details so that members of the public can make appointments with attorneys in their area. In addition, the contact details and addresses of all participating attorneys can be accessed on the LSSA website at www.lssa.org.za
The following issues may arise if one dies without leaving a Will:
- Your assets may not be left to the person of your choice.
- It can take a longer time to have an executor appointed. The appointed executor may be somebody you may not have chosen yourself.
- There could be extra and unnecessary costs.
- There could be unhappiness and conflict among family members because there are no clear instructions on how to distribute your assets.
Before the consultation with your attorney, think about the following:
- Who must get what?
- Who should be the legal guardians of your minor children (those under 18)?
- Who should be the executor of your will? This could be your attorney, close family member, or friend. If you decide on a family member or friend, nominating the attorney as co-executor is advisable as the attorney will deal with any legal issues. The executor must be approved by the Master of the High Court.