WHAT IS A WILL AND WHY IS IT SO IMPORTANT?
It is a document in which you ensure that your assets and belongings are distributed in accordance with your last wishes after your death.
WHY DO YOU NEED A WILL?
You need to ensure that your family and loved ones are provided for in terms of your last wishes;
It is your right to decide who should inherit your assets;
You can leave your assets to beneficiaries of your choice;
Conflict among members of your family and loved ones can be avoided if you have clear instructions on how your assets should be distributed;
You can select an executor who you trust and avoid unnecessary costs.
WHAT WILL HAPPEN TO YOUR ASSETS IF YOU DO NOT HAVE A VALID WILL?
Your estate will devolve in terms of the rules of the Intestate Succession Act. This means that beneficiaries will inherit your estate in order of preference.
The order of preference will be as follows:
Your spouse/s will inherit R250 000.00 or a child's share of your estate, whichever is the greatest;
Thereafter any descendants in equal shares;
Your parents will inherit your estate in equal shares (if you died without a surviving spouse or descendants);
Your siblings (if one or both of your parents are predeceased);
If you are not survived by any relative, the state will inherit your entire estate.
WHAT ARE THE REQUIREMENTS FOR A VALID WILL?
The requirements for a valid Will are as follows:
A person must be over the age of 16 (sixteen) years;
The Will must be in writing;
The person writing the Will may not be mentioned as a beneficiary in the Will;
Each page, including the last page, must be signed by the testator;
The Will must be signed by two competent witnesses.
AVOID CONFLICT BETWEEN YOUR LOVED ONES AND FAMILY MEMBERS BY USING A WILL TO APPOINT A TRUSTED EXECUTOR TO ADMINISTER THE LIQUIDATION OF THE ESTATE AS WELL AS THE DISTRIBUTION OF YOUR ASSETS:
The executor of your estate is the person who becomes responsible for the distribution and administration of your estate. If you do not appoint an executor, the intestate heirs (spouse/s, parents, descendants) may appoint and nominate a person as the executor, however the final decision lies with the Master of the High Court.
If you fail to appoint an executor in your Will, it will further delay the distribution process as your family members are left with the stringent task of deciding who to appoint as the executor of the estate before it can be administered. In most cases this causes conflict, unnecessary delays and uncertainty for your family members.
WHAT ABOUT LIFE PARTNERS?
If you are in a long-term relationship, whether a heterosexual or same sex relationship, and you are survived by your partner while not having concluded a Will, your partner will not receive the same protection as a formal “spouse” does in terms of the Marriage Act and the Civil Unions Act as defined. Your partner will not be recognised as a spouse and will therefore not inherit unless specifically provided for in your Will.
DOES DIVORCE AFFECT YOUR WILL?
A divorce does not invalidate your will where you still provide for your ex-spouse as a testamentary heir. After a divorce, you are allowed 3 months in which to amend your Will to remove your ex-spouse as an heir, failing which, it is reasonably assumed that you wanted to include your ex-spouse in the Will.
This means that your ex-spouse will inherit in terms of the Will despite the divorce, which renders the amendment to your Will upon divorce essential. It is advised that you request that your attorney assist in this process immediately upon completion of your divorce.
AMENDING YOUR WILL:
You may amend or revoke your Will at any time before your death. Amendments include deletions, additions and alterations.
An amendment made via a codicil, which is a schedule or annexure to an existing will, must follow the same rules as those for drafting a valid will. The witnesses to a codicil do not have to be the same as the witnesses of the will.
Amendments made on the Will itself must be identified by the signature of the testator or such person signing on his behalf. The signature must be made as close as possible to the amendment in the presence of two witnesses who are present at the same time. The witnesses must also sign as close as possible to the amendment. If the amendment is signed via a mark, thumbprint or a delegated person, then the commissioner of oaths must also satisfy himself as to the intentions and identity of the testator and must certify the amendment.
A Will is an important document to have in place and puts one's mind at ease that their estate will be administered in the way they wish it to be. For any assistance in drafting your will and/or further advice, please contact zelmari@kernattorneys.co.za or call our offices to set up a consultation on 010 109 1055.