Why a Will
A Last Will and Testament is a must have document that allows you to express your wishes for your estate after you’ve gone, including provisions for your civil partner. Its main function is to appoint key people and distribute your assets which includes money, properties, investments and personal belongings. Creating a Will is a responsibility for all adults and should be done sooner rather than later.
Don’t view it as a one off task, think of your Will as a living document that should change with your life. Start creating your first Will as an adult and update it whenever major life changes happen. It is important to update your will to reflect changes in your civil partnership status, such as entering into or dissolving a civil partnership.
Appointments in your Will
Who is your Executor
Your executor is the person you trust to carry out the instructions in your Will. In South Africa their duties include arranging the funeral, managing your assets and distributing them according to your wishes. This is a big responsibility and should be someone reliable, organized and good with people. Executors can hire professional help if needed, paid for by the estate. If no personal options are available you can opt for professional services but this will cost the estate. Consulting an estate planning attorney can provide valuable guidance in selecting an executor and ensuring all legal requirements are met.
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Who will take care of minor children
In the event both parents are not available, for example in a joint accident, the South African courts will appoint a guardian for minor children. If you appoint a guardian in your Will the court will probably honour your choice if the person is suitable and in the best interest of the child.
But circumstances can change and your appointed guardian may not be suitable. So while your guardian nomination is influential it’s not legally binding unless the chosen person is willing to take on the role.
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How to distribute your assets in your Will
Your Will allows you to detail how your assets will be distributed to beneficiaries which can include family, friends and charitable organisations. Allocations or bequests can be specific amounts, objects or percentages of your estate. And your Will should have alternative plans in case your main plan is not possible, covering all scenarios. Including a no-contest clause in your will can help prevent disputes by discouraging beneficiaries from challenging the will.
What happens if you die without a Will
Without a Will South African intestacy laws under the Intestate Succession Act will determine how your estate is divided. No appointed executor can lead to family feuds and legal delays. Courts will eventually appoint an estate administrator to protect the assets – but not without risk.
Intestate estate distribution follows a specific order and can send your estate to distant relatives or even the government if no heirs are found. It prioritises spouses and children in the succession hierarchy. A comprehensive estate plan includes multiple legal documents, such as wills and trusts, to ensure your wishes are followed.
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How to create a Will
Option 1: DIY Will Kits
Creating a Will yourself is a cost effective option but can be complicated. The document must clearly state that it’s your Last Will and Testament and be signed by two witnesses. Common mistakes include not having enough contingency planning and having outdated asset lists. Keep an updated asset inventory separate to help executors and don’t embed it in the Will itself.
Option 2: Legal Assistance
Traditionally creating a Will involves consulting a lawyer. This option offers legal advice especially useful in complex situations like using a Henson Trust to protect a child’s benefits. But legal services can be expensive especially if you are a working professional and time is an issue.
Option 3: Online Will Services
Online interactive platforms offer a convenient and cost effective way to create professional quality Wills according to South African law. They guide you step by step to avoid common mistakes. You can update the Will as your personal circumstances change.
Lawyers and Wills
While there’s no legal requirement to use a lawyer to create a Will, their advice is useful for complex situations. A basic Will must state its purpose, be signed by you and have two adult witnesses who are not beneficiaries or their spouses.
Storing and validating your Will
Storing your will in a safe and accessible location is crucial to ensure that it can be easily found and validated after your passing. Here are some tips to consider:
- Secure Storage: Store your will in a fireproof safe or a secure location in your home, such as a locked cabinet or a safe deposit box. This ensures that your will is protected from potential damage or loss.
- Clear Labeling: Make sure to label your will clearly and include your name, date of birth, and the date the will was signed. This helps in quickly identifying the document when needed.
- Informing Executors and Loved Ones: Inform your executor and loved ones about the location of your will and provide them with a copy or the details of where to find it. This ensures that they can access the will without any delays.
- Professional Storage Services: Consider storing your will with a trusted estate planning lawyer, accountant, or bank, as they can provide a secure and confidential storage service. This adds an extra layer of security and peace of mind.
- Legal Validation: Validate your will by ensuring that it meets the legal requirements of South Africa, including the signature of two witnesses and a self-proving affidavit. This makes your will legally valid and helps avoid any disputes during the probate process.
Other Estate Planning Documents
In addition to a will, there are other essential estate planning documents that you should consider to ensure comprehensive planning:
- Living Will: A living will, also known as an advance directive, outlines your medical treatment preferences in the event that you become incapacitated. This document ensures that your healthcare wishes are respected when you are unable to communicate them yourself.
- Power of Attorney: A power of attorney grants someone you trust the authority to manage your financial and personal affairs if you become unable to do so. This is crucial for handling financial accounts, paying bills, and making important decisions on your behalf.
- Trusts: Trusts are legal entities that hold and manage your assets on behalf of your beneficiaries. They provide tax benefits, protect assets, and help avoid the lengthy probate process. Trusts are particularly useful for managing assets for minor children or dependents with special needs.
- Beneficiary Designations: Beneficiary designations allow you to name individuals or organizations to receive specific assets, such as life insurance policies or retirement accounts, outside of your will. This ensures that these assets are transferred directly to the beneficiaries without going through probate.
Funeral Wishes
Including your funeral wishes in your will or a separate document can help ensure that your loved ones know your preferences and can make informed decisions about your funeral arrangements. Consider including:
- Funeral Service: Specify the type of funeral service you prefer, such as a traditional burial or cremation. This helps your loved ones understand your wishes and plan accordingly.
- Burial or Cremation: Indicate your preference for burial or cremation and provide details about the location and type of service. This can include specific instructions about the cemetery or crematorium.
- Memorial Service: If you prefer a memorial service, specify the type of service and any specific requests, such as music, readings, or speakers. This allows your loved ones to honor your memory in a way that reflects your personality and values.
- Charitable Donations: Consider including a request for charitable donations in lieu of flowers or other gifts. This can be a meaningful way to support causes that are important to you and create a lasting legacy.
By including your funeral wishes in your estate planning documents, you can provide peace of mind for your loved ones and ensure that your final wishes are respected.
Storing and ensuring a valid will
Once signed and witnessed a Will is legally binding and doesn’t need to be notarised or registered. Store it in a safe and accessible place known to your executor. When you pass away your executor will file it with the local probate court to get a “Grant of Administration”.
Other Estate Planning Documents
Funeral Wishes
Document your funeral wishes separately from your Will to keep them private and avoid delays.
Asset Inventory
Give executors an asset list. This will make asset management easier and reduce risk of state claims.
Financial Power of Attorney
Appoint someone to manage your finances if you lose mental capacity. Do this while you are still competent.
Living Will and Healthcare Directives
Choose someone to make healthcare decisions and express your treatment preferences. Create a Living Will.
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LegalWills.co.za: Making it Easy
LegalWills.co.za offers a quick and easy Will creation service in South Africa, covering key appointments and asset distribution. Instead of joint Wills consider Mirror Wills to avoid legal headaches, each partner has their own Will with a primary beneficiary and back up plans.
Intestate Succession Laws in South Africa
If you don’t have a Will your estate will be distributed according to South African intestate succession laws. If you are single with no children your estate will go to your parents. If they are deceased your siblings will inherit. If no siblings then it will go to other relatives like nieces, nephews or cousins. Only if no relatives exist will your estate go to the state.
For married couples with no children the estate will go to the spouse. But without a Will this process will be delayed. For couples with children the situation is more complicated as the spouse and children will share the estate according to percentages.
Benefits of a Full Estate Plan
A full estate plan includes not only your Will but also other documents to cover:
1. Trusts: To manage assets for minors or protect benefits for dependents with disabilities.
2. Enduring Power of Attorney: Appoints someone to manage your finances if you’re incapacitated.
3. Advance Healthcare Directives: Ensure your healthcare wishes are respected if you’re incapacitated.
These tools complete your estate plan so your financial and medical wishes are carried out as you intended.
Why Update Your Will Regularly
Life changes like marriage, divorce, having children or significant financial changes require you to update your Will. Regular reviews ensure it stays relevant and up to date so there’s no conflict and clarity for your loved ones.
Will FAQs
1. Can I change or revoke my Will after I’ve created it?
Yes you can change or revoke your Will at any time while you are mentally competent.
2. How often should I update my Will?
Update your Will after major life events or review it every few years to ensure it’s still in line with your wishes and assets.
3. What happens if a beneficiary dies before me?
Your Will should have alternate beneficiaries to cover this situation so assets are distributed as you intend.
4. Can I include digital assets in my Will?
Yes include instructions for your digital media, online accounts and potentially valuable digital currencies.
5. Is a handwritten Will valid?
In South Africa handwritten or even holographic Wills are acceptable if all legal requirements are met.
Get Started
Going through the Will process means your final wishes are documented and legally protected so you and your loved ones can have peace of mind.
The opinions expressed herein by “LegalWills.co.za” are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed within this document are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No communication with “LegalWills.co.za”, on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney’s advice and counsel for any information that has been published herein by “LegalWills.co.za”.
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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