WHAT MAKES A WILL ESSENTIAL?
Category Legal
Death is an inevitable part of life, and a valid Will is an essential part of death.
Intestate Succession Act
Should you not leave a Will, your estate will be distributed in accordance with the Intestate Succession Act. Your assets may be distributed to individuals whom you did not want to inherit and thus you forfeit the opportunity to decide who inherits what.
Life Partnerships
Your inheritance in terms of a life partnership is not guaranteed and the Master of the High Court will request numerous affidavits and other supporting documents to accept the life partnership and subsequently inherit in terms of the Intestate Succession Act. This will delay the issuing of the Letter of Executorship from the Master.
Guardianship of Minor Children
Section 27 of the Children's Act makes provision for a guardian to be nominated in your Will.
Should no guardian have been appointed, a court order needs to be obtained as per section 29 of the Children's Act. This can be a costly and lengthy procedure. The Court will have the final decision who will be your children's guardian, and this person may not be someone that you would have approved of.
Minor / Disabled Beneficiaries
Should you not have a Will, your minor children's inheritance must be deposited in the Government Guardian's Fund. This fund is administered by the government and little interest is earned on the inheritance. The guardian of the child will have to contact the Government Guardians fund should they require any money for the child.
Change of Personal Circumstances
As your personal circumstances change, so should your Will. A Will must be amended in the event of marriage, divorce, birth of a child, or the death of a beneficiary. In the event of a Divorce, Section 2B of the Wills Act, allows a person a period of three months from date of divorce to revoke or amend his will if he bequeathed any of his assets to his ex-spouse, and after the divorce, he no longer wishes for her to inherit from his will. If he fails to revoke or amend his will within three months from the date of divorce, his ex-spouse will inherit in terms of his will, despite the divorce.
Family Feuds
If final wishes are not clearly stated in a Will, it may lead to family members arguing over the distribution of the estate.
Inheritance excluded from Matrimonial Property
This is a general clause in the Will that states that the beneficiaries' inheritance shall be excluded from the accrual system and form any community of property and any community of profit and loss which may exist between such beneficiary and any spouse, in terms of any existing or future marriage.
Saves unnecessary stress for your loved ones
By nominating an experienced Executor in your Will, your family members are relieved from the burden of appointing an Executor. If the Executor is a firm or financial institution, they will safely hold your original Will. This will also ensure that the Will does not get lost.
Saves money
A Will gives the Testator / Testatrix the opportunity to already negotiate an Executor's fee prior to death.
Offshore assets
It is wise to have a separate Will for your offshore assets, as each country has its own laws and procedures for the administration of an estate. Your offshore estate would essentially be wrapped up independently from your South African estate, saving your estate time and money.
There is no time like the present to get your affairs in order. Call an estate planning attorney to assist you.
Author: Bianca Esmeraldo - Van Wyk Van Heerden Attorneys
