Planning your Legacy.
Why is it important to have a last will and testament?
A complete and valid will ensures that your assets and personal possessions are divided up amongst those individuals whom you choose to inherit them. Without a legally valid document setting out these choices, your estate won't necessarily be bequeathed according to your wishes. Your wishes about who should inherit depends on having a valid will.
Most South Africans do not have a valid will, and Phillips & Associates is trying to drive home the importance of changing this. Misconceptions around the need for a will are central to some of the problems associated with South Africans failing to finalise their wills. For one thing, many people believe it's only necessary to start contemplating a will once you reach a much older age. Yet, the reality is that reaching an older age is not guaranteed for anyone. Others believe they should only contemplate a will once they acquire certain property or valuable assets, but this idea is also flawed because having a will expedites the winding up process irrespective of your estate’s value.
What happens if you die without a will?
In South Africa, we have the ability to choose how an estate plan will be executed after we are gone. This relies completely on a legally valid Last Will and Testament. Without one, our legal system has laws in place that regulate how a person's estate shall be distributed amongst your remaining relatives. For example, your spouse and children, or even siblings and parents (where there is no spouse or children). These are set out in terms of the Intestate Succession Act 81 of 1987.
While there are provisions in place to manage how your assets and personal possessions are wound up, a person who passes without a will leaves behind problems which can make the process much more difficult.
Apart from your assets and personal possessions falling into the hands of a person you would have preferred not to have inherited, other challenges include:
A lengthy process of appointing an appropriate executor (who can also end up being someone who you would not have chosen while alive).
Additional fees and costs - these can quickly add up!
Confusion, frustration or even conflict among remaining loved ones who do not have a clear outline of what you would have wanted.
Without a will, you cannot set up a trust to receive assets or cash on behalf of minors. Cash will then end up going to the Guardian's Fund which is administered by the Master of the High Court.
Without a will, you cannot nominate a guardian for your minor children should both parents die simultaneously.
Without a will, you cannot distribute offshore assets.
What do you need to draft a valid will?
Before drafting a will, there are certain details which require careful thought. In the Last Will and Testament, your wishes will become final so they must be clear and well thought out.
You must be sure about things like who will get what, who the legal guardian for minor children will be; and who you choose to manage your estate (known as the executor). You can choose a spouse, if suitably qualified, but preferably your Phillips & Associates attorney who will guide you through the entire process.
There are also other specific personal details to be considered before drafting or even revising an existing will. For example, if you have gone through a divorce, you must amend your will within three months. If you haven't done this, a former spouse can still inherit according to the last will because it is deemed valid by our legal system.
Furthermore, the legal requirements for drafting a valid will can be tricky. Any mentally competent individual from the age of 16 can draft a valid will, but the signing requirements in the Wills Act 7 of 1953 are technical and are easy to get wrong.
It is, therefore, a good idea to have your attorney assist with the drafting process. In this way, she can ensure that all the legal requirements of the Wills Act 7 of 1953 are sufficiently met.
Requirements for a will to be valid include
A will must be in writing (audio and video statements are not valid).
Two witnesses must be present during the signing process and must be older than 14 years.
Witnesses must not be mentioned as beneficiaries, in any way, in the will.
Every page of the will must be initialled, with the last page being signed in full.
The witnesses must also initial each page and sign the final page of the will.
In their will, you should always appoint an executor. It is this person’s responsibility to ensure that all of your property, possessions and other assets are divided according to your wishes. The executor also has the right to make certain decisions regarding your estate after any outstanding debts have been settled. This is why is very important to elect a person who is appropriately qualified to protect your estate and ensure that it is wound up in the quickest and fairest possible way.
Once a will is setup and complies with the legal requirements, it must be kept safely along with all the necessary documents that apply to each mentioned asset, including investments, life insurance policies and property. You can store these files and your will in a secure safe at home or in the Phillips & Associates secure wills storage. It merely needs to be in a safe place that can be accessed if changes are required or when the time comes for your wishes to be executed.
Many South Africans continue to live their lives underestimating the value of having a valid and current will in place. Keeping your will up to date will help to ensure that no heirs are accidently omitted, your estate is wound up efficiently and you leave the legacy of your choice.