Almost 80% of South Africans pass away without a valid or up-to-date Will in place, which can cause significant difficulties for their families. So why is having a Will so important? We will try and answer the general questions you may have about Wills in this article – you can always obtain in depth answers to your particular circumstances and desires for your Will by clicking below to secure an appointment with a knowledgeable expert for a superb cost-free service.
What is a Will and who can draft a Will?
A Will is a document in which any person of sound mind (mentally capable of appreciating the nature and intent of the Will), aged 16 years or older, places on record how they wish their belongings to be distributed after their death. The person making the Will is known as the Testator.
Why have a Will?
Because your Will prevents Intestate Succession.
So, should you pass away without a Will in place, or with a Will deemed by a Court to be invalid, then your estate will be distributed to your family members in a priority sequence and proportion determined by the laws of Intestate Succession. These laws determine the order in which your spouse, children and family are entitled to inherit your property and assets. Your children’s benefits may even be placed into the Guardian’s Fund administered by the State (and incidentally currently in the press for all the wrong reasons). If you had wanted to donate to a charity or organisation, or leave a sentimental item with a particular person, the law of succession will not meet your wishes. Should the deceased not have a spouse, children or family, their property and assets will be forfeited to the State.
By implication, a Will is simply a MUST! We cannot predict the future, so take positive action today; simply click here to make that easy appointment.
Your Will does more than simply Distribute Property
Most Wills focus on the distribution of the Testator’s property and assets, but much more can be included in your Will. For example:
- You have the right to decide who should inherit your assets and who should not;
- You ensure that your family is provided for in terms of your last wishes;
- You can name guardians for your children and their property;
- You could create a Trust for your children or other beneficiaries;
- You can name the Executor to wrap up your estate, preferably someone you trust;
- You can avoid extra and unnecessary costs and even minimise taxes, with good tax advice;
- You can plan for the fees associated with passing away, such as Executor’s fees, conveyancing fees and Trust fees; and
- You may avoid unhappiness and family conflict because there are clear instructions on how to distribute your property and assets.
What makes a Will valid?
Ensure that your Will is valid by following these guidelines or allow our experienced personnel to guide you through the process, by clicking here. Conditions for your Will to be valid include that:
- Your Will is in writing, whether handwritten or typed;
- You and two witnesses sign anywhere on each page of the Will and as close as possible to the last line of content on the last page;
- You sign the Will in the presence of the two witnesses;
- Should the Testator not be able to sign the Will, someone can sign on behalf of the Testator or the Testator may make a mark (a thumbprint or a cross) on the Will – in the presence of a Commissioner of Oaths; and
- Any provision in the Will may not be against the public interest or good morals.
If your spouse has signed your Will as a witness, the Courts may reject your Will as an invalid Will. This is because any person signing as a witness is disqualified from receiving any benefit from the Will, so please select your witnesses carefully.
Life brings changes, so your Will should change too
Be sure to amend your Will as your circumstances change – marriage, children, loss of loved ones or even a divorce. Make sure that the changes all comply with the requirements for a valid Will.
A divorce does not invalidate a Will where an ex-spouse is still listed as a beneficiary. Divorce is almost always an emotional and stressful time, so the law has catered for this by granting time for changes to be brought to the Will. Should the Testator die within three months of the divorce, the law assumes that the ex-spouse died before the Testator. This means that if the ex-spouse was an heir in the Will, they will not inherit from the estate of the Testator. Should the Testator die three months or more after the divorce, the law assumes that the Testator intended to include the ex-spouse in the Will and any benefit will now be inherited.
Where should I keep my Will?
Inform a reliable person where you intend to keep your original Will (note that a copy of the Will is deemed to be an invalid Will; you may have more than one originally signed will). Your original Will should be kept in a safe place where it can easily be found after your death. Should you want the contents to be kept private until after you pass away, you could always seal your original Will in an envelope with instructions that it only be opened after your death.
One of your many options is to leave an original Will with your Executor.
Now that you have some insight into the need for a Will and a few other aspects relating to a Will, take the next step and make an appointment to draft your own Will today. Click here.