In South Africa over 65% of the adult population does not have an updated Last Will and Testament. The administration of a deceased estate becomes crucial in such cases, as it ensures that the estate is managed according to the deceased’s wishes and avoids complications from intestate succession. Many know it’s important but put it off. Some say they don’t need a Will yet. We look at the top reasons people give for not having a Will and why you should get it sorted now.
1. “My Spouse Will Get Everything, With or Without a Will”
It’s a common myth that your spouse will get everything. South Africa’s Intestate Succession Act applies if you die without a Will. This legislation sets out a strict order of heirs, starting with the spouse and children. Without a Will the distribution may not be what you want, your spouse may end up sharing the estate with your children or others which could have unintended consequences. Probate laws can grant a surviving spouse full ownership of the entire estate in the absence of living children or grandchildren. A Will lets you decide exactly who gets what, so the state doesn’t make those decisions for you.
2. “I Already Have a Will, Created Years Ago”
A Will is valid until revoked or significantly changed by life events such as marriage. But it’s highly unlikely your circumstances haven’t changed since then. Family dynamics, assets and relationships evolve, need to be updated. And with digital Will services like LegalWills.co.za it’s easy to update your Will as often as your circumstances change.
3. “I’ll Get a Will Once I Have More Money”
Many people put off getting a Will because they think it’s only necessary when they have a lot of assets. But life is unpredictable. When a person dies without a valid will, their assets are distributed as an intestate estate, which involves legal complexities and the stipulations of the Intestate Succession Act. A Will isn’t written today, but only when you’re gone. Regardless of your current asset level, your estate could grow significantly due to unexpected events like accidents resulting in compensation or insurance claims. Getting a Will now means it can adapt to your changing financial situation, no matter what happens.
4. “I’ve Spoken to My Family”
Relying on verbal promises often leads to family disputes and misunderstandings. In legal terms spoken promises mean nothing. Conflicts arise when family members think they deserve specific assets based on past conversations without a written document. By putting your wishes in a legally binding Will you provide clarity and prevent family tensions and disputes.
5. “It’s Not My Problem, Someone Else Will Sort It Out”
Not taking responsibility for a Will can leave your estate in chaos. Dying intestate puts a huge burden on your loved ones and can lead to disputes, especially if there’s no nominated executor to manage the deceased’s estate. Intestate succession determines how the deceased’s estate is distributed, often ignoring your final wishes and potentially causing conflicts among surviving partners and heirs. A Will lets you express gratitude to people or organisations that played a big role in your life and benefit them as you wish. Without it, the state will distribute your assets randomly and may ignore your final wishes.
6. “I’m Too Young for a Will”
Young age shouldn’t stop you from getting a Will. It is crucial to designate a legal guardian for minor children in your will to ensure they are cared for by someone you trust. Many think Wills are only for the elderly, but life is unpredictable and anyone can benefit from estate planning. A Will gives you peace of mind that your affairs are in order, no matter what your age. Modern Wills are flexible and adapt to life’s changes. Start estate planning early to avoid complications from unexpected events.
7. “Getting a Will Is Too Expensive”
The perceived cost is often the reason for putting off a Will. It is advisable to seek guidance from a legal representative on estate planning and intestate succession. Legal services will quote big fees but LegalWills.co.za offers an affordable option. Unless you have complex estate issues that require specific legal intervention you don’t need to spend a fortune to protect your estate. Affordable solutions exist, so no need for multiple expensive lawyer visits.
8. “I Don’t Have Time to See a Lawyer”
Managing a busy schedule makes visiting a lawyer a hassle. Many find it hard to fit in with a lawyer’s hours and few do house calls. But digital services like LegalWills.co.za let you prepare your Will at your own pace and from any location, so you can fit this important task into your schedule.
9. “A DIY Kit will do for my Will”
While cheap DIY kits are affordable, they may not capture the intricacies of your life for estate planning. In marriages in community of property, a joint estate encompasses the shared financial and asset arrangements between spouses. They cover basic scenarios but lack the depth for your unique personal situation. A full Will has clauses beyond what’s in a kit and can lead to legal complications from overlooked areas. LegalWills.co.za has full, customisable documents to cover these complex areas, minimising oversight risks.
10. “The Will Writing Process is Too Complicated”
Many are intimidated by legal terms and find the process of writing a Will too complicated. But services like LegalWills.co.za simplify these complexities and offer guided help with step by step explanations. Legal jargon like “beneficiary” and “residuary estate” becomes clear with intuitive definitions so anyone can write a Will without needing to be a lawyer. If you’re unsure, customer support is available to help and clarify.
What Happens if I Die Without a Will?
If a person dies without a valid will, they are deemed to have died intestate. In South Africa, the Intestate Succession Act (Act 81 of 1987) governs the distribution of the deceased’s estate. This Act ensures that the deceased’s assets are allocated to their surviving relatives in a manner deemed fair by law. However, the process of intestate succession often does not reflect the deceased’s personal wishes, potentially leading to legal challenges and emotional difficulties for the family. Without a will, the distribution of your estate is out of your hands, and the state decides who gets what, which can be far from what you intended.
Intestate Succession in South Africa
In South Africa, the Intestate Succession Act provides a legal framework for the distribution of a deceased person’s estate when they die without a valid will. The Act prioritizes the distribution of the estate among the deceased’s closest relatives, including the surviving spouse, children, parents, siblings, and other relatives. It also covers various marital arrangements, such as marriages in community of property and customary marriages. This legal process ensures that the estate is divided in a structured manner, but it may not align with the deceased’s personal wishes or the specific needs of their family.
Who Inherits Under Intestate Succession?
Under the Intestate Succession Act, the following individuals are entitled to inherit from the deceased’s estate:
- The surviving spouse or spouses
- The deceased’s children, including children born out of wedlock
- The deceased’s parents
- The deceased’s siblings
- Other relatives, including grandparents, aunts, uncles, and cousins
- The state, if the deceased has no surviving relatives
This hierarchy ensures that the deceased’s closest family members are prioritized, but it can also lead to complications if there are multiple surviving spouses or if the deceased had a complex family structure. Without a will, the distribution may not reflect your personal relationships or the specific needs of your loved ones.
Creating a Valid Will
Creating a valid will is essential to ensure that your assets are distributed according to your wishes after your death. A valid will must be in writing, signed by the testator, and witnessed by at least two people. It’s crucial that the will is free from errors or ambiguities and is executed in accordance with South African law. By having a legally valid will, you can ensure that your estate is managed and distributed exactly as you intend, providing peace of mind for you and your loved ones.
The Role of the Executor
The executor is responsible for managing the deceased’s estate and distributing the assets according to the will or the Intestate Succession Act. Appointed by the Master of the High Court, the executor’s duties include:
- Locating the will and ensuring that it is valid
- Managing the deceased’s assets and liabilities
- Paying off any debts or taxes owed by the estate
- Distributing the assets according to the will or the Intestate Succession Act
- Providing an accounting of the estate’s assets and expenses
- Filing tax returns on behalf of the estate
Choosing an executor who is trustworthy, reliable, and has the necessary skills and expertise to manage the estate is essential. This person can be a family member, friend, or a professional such as a lawyer or accountant. The right executor will ensure that the legal process is handled smoothly and that your estate is managed according to your wishes.
My Spouse Will Get Everything, With or Without a Will, Due to Intestate Succession
There’s no excuse not to have a Last Will and Testament especially when the consequences of dying without one are so severe. Estate planning isn’t as hard or complicated as you think, with digital options available. Whether you want to protect your family from unnecessary hardship or ensure your estate is managed according to your wishes, a Will is essential.
Get started today with LegalWills.co.za. Protect your legacy and have peace of mind for yourself and your loved ones, a future that’s exactly what you want and value. Start your estate planning now and secure your family’s future fully and securely.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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