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| WILLS |
| Peace of mind for those you leave behind |
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| What is a will? |
| A will is a written document which declares what must happen to the property of someone after his or her death. To be valid, this document must comply with requirements prescribed by law. |
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| Why have a will? |
- Choice of heirs
It enables the testator ‹the person whose will it is› to choose his heirs and beneficiaries. It also enables the testator to prescribe the
*size of the benefit,
*and upon what conditions persons may benefit.
A person who dies without a valid will, dies intestate and the assets of such a person will be at the mercy of the applicable statutes and common law.
The effect of dying intestate is a delay in administration, a probable increase in costs and a distribution of assets which may diverge significantly from that which the deceased would have wished.
- Choice of executor
In a will the testator can appoint an executor of choice rather than leaving this difficult and time–consuming task to be done by someone the testator does not have confidence in. This also prevents unnecessary delays in the administrative process and frustration for one’s family. To preserve the harmony of the family after the death of the testator, a neutral executor such as an attorney can be a useful choice.
- Choice of a guardian
The will allows one to nominate guardians for minor children and give specific directions as to the benefits, raising and education of the children.
- Choice of administrator, trustee or investment manager over the benefits of the minor
In a will, financial provisions can be put in place for the benefit of the testators children or other heirs. In the absence of such provisions, the funds available for the minor children will be held by the Guardian’s Fund at the office of the Master. Funds held in the Guardian’s fund are not freely accessible and attract interest at an extremely low interest rate.
- Estate planning vehicle
Irrespective of the estate size and whether use has already been made of estate planning, the will on its own constitutes an effective and important instrument for sound estate planning. It enables the testator to make use of the various estate duty concessions ‹eg. the spouse deduction.›
- Medium for co-ordination of distribution on death
The will is an important medium for the testator to communicate last instructions to other trustees or third parties in respect of property falling outside the estate of the testator ‹eg. assets or money held in trust, under policy nominations or in retirement funds›. It may also effectively be used to confirm desired beneficiary nominations made under such outside instruments.
- Ability to exclude property from spouse or creditors of a beneficiary
Safeguards can be built into a will to protect a benefit. Otherwise such a benefit will be exposed to the pickings of creditors of the beneficiary. Without proper safeguards, the benefit could fall into the joint estate of a married beneficiary. It might also be subject to an accrual claim from the spouse of the beneficiary. The will could provide for maintenance of an insolvent beneficiary without falling into the insolvent estate of such a beneficiary.
- Varying common or statutory law
Certain legal consequences, for instance the rights of illegitimate or adopted children to inherit, may be varied by will.
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Even if you feel that you have no assets to bequeath it is still important to make a will. You may inherit something just before you die and you may not be in a position to make a will anymore ie because you may be mentally incapable. A will facilitates the administration of your estate for your loved ones.  |
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| Who may make a will ? |
| A person 16 years or older may make a will unless he is mentally incapable. |
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| Formalities of making a valid will |
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| A will must be a written document and can not be done orally. The will must be signed at the end by the testator and if it consists of more than one page, every page must be signed. The will must be witnessed by two competent people signing in the presence of the testator on every page the testator has signed. A witness must be aged 14 or over. |
| Certain people involved in the execution of a will including witnesses, persons who sign at the direction of the testator and persons who write the will in their own handwriting or their spouses may not benefit thereunder, with certain exceptions. |
| It is always safer for the testator to consult a professional such as an attorney rather than run the risk of leaving behind loved ones with an invalid or deficient will. |
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| Can a will contain any bequest or direction ? |
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| In South Africa we have freedom of testation, but this freedom is not absolute. A testamentary direction which is illegal or against public policy is unenforceable. The duty to support will limit a parent’s freedom of testation and the liability of a parent’s estate for support of a dependant child is established in our law. A person can execute a new will at any time and the new one will normally replace older will. The testator may also not “rule from the grave” by prescribing unlimited directions to generations to follow. |
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How to make a will |
It is advisable to contact a professional person to assist you with the drafting of your will. The best person to assist you is an attorney dealing with administration of estates. The attorney will be able to advise you as to the best way in which to structure your will so that it will give effect to all your wishes. He/she will further be able to inform you on the best ways to structure your estate for estate planning purposes. An attorney will usually charge you when you instruct him/her to draft your will. However when the estate is wound up he/she is bound by a set amount prescribed by the law for work done in regard with the administration of the estate.
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| Clauses for a simple will |
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| To direct the thoughts of the prospective testator, these are examples of the types of clauses which occur regularly in wills and exclude any other provisions that the testator would like to make: |
- Revocation of previous wills.
- Legacies.‹ie. specific bequests›
- Appointment of heirs.
- Trust clause ‹when necessary›.
- Appointment of executor ‹and trustee where necessary›.
- Powers of trustees ‹where necessary›.
- Exclusion from community of property.
- Disposal of remains.
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| Use simple and clear language |
Joe: “I can tell that this document has not been drafted by an attorney”
Jill: “How can you tell?”
Joe: “Well, its easy. There are two whole words on the page that I can understand !” |
| A will should be drafted in precise but clear language. Legal jargon should be avoided. An example of how concise words make life ‹and in this case death› easier, is |
| “I give, devise and bequeath the whole of the rest, residue and remainder of my estate whether movable or immovable and wheresoever situate, and whether the same be in possession, reversion, remainder, expectancy or contingency, unto and in favour of John Nazereth” |
which could be replaced with a simple and concise
“I leave my assets to John Nazareth” |
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| So take the first step. You must start somewhere. It can be reviewed later. Just do it. |
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If you need assistance please contact us.
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| ESTATES |
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| Administration of Estates |
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| Winding up of an Estate |
| Except for the discomfort, the death of a relation can result in a time of uncertainty for those left behind. The winding up of an estate should be done by a professional person to ensure a reasonably quick and smooth conclusion of the process. The Master of the High Court is the government authority who oversees the administration of the estate. |
| The following steps are required to wind up an estate to the satisfaction of the Master : |
- Reporting the estate to the Master of the High Court.
- Preparing an inventory of the assets of the estate.
- Appointment of executor.
- Advertisement for debtors and creditors.
- Opening of estate bank account.
- Payment of liabilities.
- Liquidation and distribution account.
- Advertisement of account.
- Estate duty return.
- Distribution to heirs.
- Discharge of executor.
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| Intestate succession |
Property in a deceased estate which is not disposed of under a will must be distributed under the laws relating to intestate succession. The law sets out the rules in terms of which property not subject to the provisions of a will must be distributed.
If a deceased person is survived by a spouse but not a descendant, the spouse will inherit. If he / she is survived by a descendant but not a spouse, the descendant inherits. If he / she is survived by both a spouse and a descendant, the spouse will inherit the greater of a child’s share or an amount fixed from time to time by the Minister of Justice, currently R 125 000–00.
In the event of the deceased having neither descendants nor spouse, his / her parents will inherit. The law prescribes the further path of succession of an intestate where there are no immediate relatives or no relatives at all. If there are no relations the estate goes to the state. |
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| Estate Planning |
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| Securing maximum enjoyment of your assets for you and those nearest to you. |
| Why Plan? |
| Most people work hard to earn a living and are so busy at it that little ‹if any› thought is given to plan what happens with what they have earned. Then suddenly ‹in many instances too late› they realize that there are threats to their assets and they begin frantic attempts in search for a cure to save what is left. |
Prevention is better than cure and the fact that you are reading this page is the first step to a more secure estate.
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| Who should plan checklist? |
| If your answer to any of the following questions is “yes”, then you should consult an estate planner as soon as possible: |
- Do you intend getting married?
- Are you going to or do you already have a child?
- Are you having marital problems?
- Are you engaged to be married?
- Are you married?
- Do you intend starting a business?
- Do you own your own business?
- Are you a tax payer?
- Are you having financial problems?
- Are you changing employment?
- Was your will made longer than a year ago?
- Is your will lost?
- Have you no will?
- Do you want provision for when you retire?
- Are you retired and concerned about your investments?
- Are you concerned about your investments?
- Do you intend making investments?
- Are you earning a salary?
- Are you buying or selling a home or business?
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We could save you many hundred thousands of rands by assisting you to structure your estate properly, and don't think your estate is too small to save that type of money. Contact us for more information and add value to your estate |
+27 21 8527780 
PO Box 3346 Somerset West 7129
