Preparing a Will
Everyone should take this seriously. A Will is to manage your affairs after you’re gone, so your wishes are followed to the letter. Not having one can cause huge problems for those left behind. Even if you think you don’t have much, things can change overnight. Preparing a Will is one of the most important tasks for your loved ones future but many put it off until it’s too late.
In South Africa anyone who is mentally competent can draft a Will without a lawyer. A Will doesn’t have to be complicated; it just needs to state how you want your estate managed and distributed to your beneficiaries. This document gives you peace of mind and ensures your wishes are honoured.
Having a Will can prevent unnecessary stress and conflict among family members during a difficult time. It’s a way of looking after your loved ones even when you’re not there to do so personally. By setting clear instructions you minimize disputes and misunderstandings, leave behind a legacy of clarity and care.
The Last Will and Testament
What is a Will?
A Will or Last Will and Testament is a legal document that outlines what happens to your assets after you’re gone. It can include setting up a testamentary trust for children. It includes setting up trusts for children and appointing guardians. It is also important to include a life insurance policy in your will and designate beneficiaries for it. An important part is the appointment of an “Executor” who will manage and distribute your estate according to your instructions, including handling any last tax matters and settling debts.
There is no specific format for a legal Will in South Africa; what’s important is that it states your wishes clearly and is signed in the presence of witnesses. Using standard legal clauses can prevent misinterpretation and disputes. They provide a framework that can be easily understood and implemented by those who will be executing the Will.
Don’t confuse a Will with a Living Will which is about healthcare decisions if you’re unable to make them yourself. A Living Will is about medical treatment preferences not asset distribution. Understanding the difference between these documents will ensure all your wishes are covered.
Why Is a Will Important?
A will is a crucial document that outlines how a person’s estate should be distributed after their death. It ensures that your wishes are respected and that your loved ones are taken care of. Without a will, the distribution of assets and property may be decided by the government, which can lead to unintended consequences and potential disputes among family members.
Having a will is also important for designating a beneficiary, such as a primary beneficiary or a contingent beneficiary, to receive specific assets or property. This can include life insurance policies, retirement accounts, or other financial assets. By naming a beneficiary, you can ensure that your loved ones receive the benefits you intended, providing them with financial security and peace of mind.
A will also helps to avoid disputes among family members and ensures that the deceased person’s wishes are carried out. It provides clear instructions on how your estate should be managed and distributed, minimizing the potential for conflicts and misunderstandings.
When does a Will take effect?
A Will kicks in upon death. During your lifetime you have full control over your assets even if they’re included in the Will. For example if your Will leaves a car to someone but you later decide to sell the car the bequest can’t be fulfilled unless replaced by an equivalent asset as described in your Will. This gives you the freedom to make decisions in real time and who benefits from your estate in the future.
Knowing when a Will takes effect gives you freedom to live without restriction and knowing exactly how your wishes will be implemented. It also protects against changes or decisions that might otherwise affect your plans.
Do you need a lawyer to write a Will?
There’s no legal requirement to use a lawyer when drafting a Will. Many find that simple estate plans can be done with DIY kits or reputable online platforms. These have come a long way and provide guidance for various estate scenarios without needing a lawyer.
But if your estate or family situation is complicated, a legal expert can be useful. They can give you personalized advice to ensure your Will is up to date and takes into account any specific aspects of your estate.
Whether you need a lawyer ultimately depends on your situation. For people with multiple assets, children from multiple relationships or special circumstances like a business interest, professional advice is important to get a comprehensive and workable plan.
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What happens if you don’t make a Will?
Dying without a Will is called dying intestate and your estate will be dealt with by the courts according to the laws of the land; they will appoint an administrator and distribute your assets according to statutory formulas in the Intestate Succession Act. Not having a will can complicate the distribution of assets, including an insurance policy. This can be a long and often doesn’t reflect your personal wishes and can cause frustration and complications for your beneficiaries.
Proper management of deceased estates is key to avoid complications and get the estate finalised according to the individual’s wishes in their Will.
Without a Will there are no clear answers on who will get your estate and how it will be divided. This lack of clarity can lead to family disputes, long legal battles and broken relationships among those left behind.
A Will prevents these problems by clearly stating your wishes so your estate is handled exactly as you want. It’s an act of kindness to those you leave behind and ensures fair distribution according to your wishes.
Relationship Changes
Marriage revokes a Will unless it’s specifically mentioned; divorce revokes provisions for an ex-spouse. Separation doesn’t affect a Will, which is why you should update it with relationship changes. Common law partners don’t have the same inheritance rights as married partners unless specifically provided for, so clarity is key in these situations to avoid conflicts.
Updating your Will with every major relationship change is critical. Life changes and so should the legal documents that go with it. By keeping your Will in sync with your personal circumstances you ensure your wishes are current and respected. Specifying your marital status is important for legal clarity and inheritance implications and to ensure the distribution of property aligns with your wishes especially with community property laws.
These can include marriages, divorces, birth or adoption of children and any other major relationship change. Taking the time to review and update your Will with these events ensures you stay in control even when life takes an unexpected turn.
How often should you update your Will?
Regularly reviewing and updating your Will is important especially after major life changes such as births, deaths, marriages, divorces or big purchases like real estate. While a codicil can amend an existing Will, making a new one is often simpler and less confusing and ensures all new terms are clear and binding.
These should happen annually or whenever a major life event occurs. Beyond personal changes, changes in laws or financial position may also require an update to your Will.
By treating your Will as a living document that evolves with time and circumstances you ensure it remains a true reflection of your current wishes and priorities. Keeping it current prevents future disputes and protects your legacy.
How to revoke (cancel) a Will
You can revoke a Will by marrying, making a new one that specifically revokes all previous Wills or intentionally destroying it with the intention to cancel it. Divorce removes parts of the Will related to the ex-spouse but doesn’t annul the whole Will.
Revocation is a formal process that should be done with care to ensure the validity of your instructions. Clear communication and documentation ensures your latest wishes are followed without ambiguity or contest.
Understanding the revocation process gives you control over your legal instructions. It’s a safety net that ensures your estate plan keeps up with your changing life and prevents out of date instructions that no longer serve your purpose.
Where to keep your Will
Keep your Will safe but accessible and make sure your Executor knows where it is. A safety deposit box is an option as long as your Executor is listed as a beneficiary. Avoid locations that will restrict access when you need it most as your legal documents need to be available to facilitate the probate process.
A Will that can’t be found or accessed is useless so planning the logistics of where it’s stored is as important as making it. Consider giving your Executor a copy or sharing the location of your Will with trusted family members. Not making a testamentary trust can result to assets being held by the Guardian’s Fund which is why proper planning is key.
Accessibility without compromising security allows your Executor to act on your behalf smoothly, manage the legal responsibilities with ease and respect. Doing these will save time and stress for those who will carry out your wishes.
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At LegalWills.co.za you can store many documents online. You can keep an inventory of your assets using the LifeLocker tool, you can upload key documents using the MyVault tool. But only a printed, signed piece of paper is accepted as your legal Last Will and Testament. An uploaded version will not be accepted by the courts.
Can you write a Will for someone else?
You can help others draft their Wills but they must understand what’s in it and sign it in the presence of two independent witnesses so they fully understand the document. This prevents any future claims of undue influence or incorrect execution.
Helping someone write their Will is an act of care and support and requires responsibility and compassion. Make sure their wishes are at the forefront of the process and the legal requirements are met.
While you may guide them, their autonomy and understanding of the person for whom the Will is being drafted is key. This ensures their instructions are respected and legally binding and reflects their exact wishes.
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My Will
Will Essentials
A proper Will has:
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Identification of the testator.
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Clear revocation of any prior Wills.
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Appointment of an executor to manage the estate. Choosing the right executor can make a big difference in the smooth administration of an estate.
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Instructions for paying debts, taxes and other liabilities.
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Testamentary trusts for minor children if necessary.
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Specific distribution of property and assets to beneficiaries.
These are the building blocks of a legal document that reflects your wishes. The clarity of your instructions minimizes ambiguity and protects you even when you’re not around.
A well drafted Will gives you and your loved ones peace of mind. It’s a statement of your wishes and a guide for the Executor to follow so your estate is managed according to your vision for your family’s future.
Joint Wills
Joint Wills especially those made by spouses can cause a lot of complications and misinterpretations. So it’s recommended to create separate Mirror Wills as they clearly state each person’s intentions and allows for adjustments without legal complexity.
Joint Wills may seem convenient but they limit individual flexibility if circumstances change. By having separate documents each spouse can change their estate plan independently and according to their personal choices or new situations.
This allows each person’s wishes to remain in tact and legally binding and to adapt to life’s changes. Mirror Wills reflect each partner’s commitment to each other and to their changing personal circumstances.
You should each prepare your own Will naming each other as your main beneficiary and have an alternate plan in place for a common accident. This is called a “Mirror Will” and services like ours at www.legalwills.co.za make it easy to create a Mirror Will. We even offer 40% discount on the second document.
Understanding the Role of an Executor
An executor is a person appointed by the deceased to manage and distribute their estate according to their will. The executor’s role is to carry out the deceased person’s wishes as outlined in the will, ensuring that the estate is distributed fairly and efficiently.
The executor’s duties include administering the deceased estate, dividing and distributing the assets according to the will, and controlling the estate until its final distribution. They are also responsible for paying taxes, debts, and other expenses related to the estate. This role requires a high level of trust and responsibility, as the executor must act in the best interests of the beneficiaries and ensure that the estate is managed according to the deceased person’s wishes.
It is essential to choose an executor who is trustworthy, responsible, and able to manage the estate effectively. The executor should also be familiar with the deceased person’s wishes and be able to carry out their instructions with integrity and diligence.
Can the executor also be a beneficiary in my Will?
Yes, Executors can be beneficiaries as long as they act impartially and fairly. It’s common for a spouse to be both a main beneficiary and Executor so the estate is managed by someone who has a personal interest in following the deceased’s wishes.
Being an Executor and a beneficiary requires equity and transparency. The Executor must put fairness to all beneficiaries first and avoid conflicts of interest that can compromise the administration or lead to disputes.
Understanding and trust between all parties is key in this arrangement and will create an environment of cooperation and respect for the instructions. With the right choice the dual role of Executor and beneficiary can indeed work smoothly.
Why name an Alternate Executor?
Naming an alternate Executor ensures continuity of management of your estate if your first choice can’t serve due to unforeseen circumstances and the estate can be administered according to your Will without court intervention.
Life is full of uncertainties so a backup plan is needed to prevent interruptions in the administration of the estate. Without an alternate the court may step in and appoint someone who may not be your choice.
Having an alternate Executor shows foresight and planning and that you care about your legacy and those who will handle your affairs. This thoughtful detail adds to the overall solidity of your estate plan.
Organ and body donations
Instructions regarding organ or body donation should be in a separate document, clearly written and stored with your Will as these are not binding in the Will itself and need to be accessible at death.
Deciding on organ or body donation is an important decision with big implications. Separate written instructions will ensure these wishes are respected and acted upon quickly, in line with your beliefs and intentions.
Talk to your family and include them in widely available documents outside of the Will. This will ensure alignment with your principles and avoid delays or misunderstandings at the time of need.
Understanding Funeral Options
Funeral options vary widely depending on cultural, religious, and personal preferences. A funeral procession is a traditional way of honoring the deceased, where family members and friends follow the hearse or other vehicle carrying the deceased. This can be a meaningful way to show respect and support for the deceased person and their family.
A memorial service is another option, often held without the body present. This ceremony allows family members and friends to gather and celebrate the person’s life and legacy. It can be a more flexible and personalized way to honor the deceased, allowing for creative expressions of remembrance.
Other funeral options include traditional burials, cremation, and green burials. Green burials are an environmentally friendly option that involves using biodegradable materials and minimizing environmental impact. This option is becoming increasingly popular for those who wish to leave a smaller ecological footprint.
When planning a funeral, it is essential to consider the deceased person’s wishes and preferences. Involving family members and friends in the planning process can ensure that the funeral is a meaningful and respectful celebration of the person’s life.
Funeral instructions should not be in the Will as it may not be available before the funeral takes place. Keep these instructions with your Will in a separate document and make sure they are communicated to your family or Executor beforehand so they know what to do and can follow your wishes.
By having funeral directions outside of your Will you enable your loved ones to act quickly and seamlessly. These are post death tasks that need to be done quickly often before the Will is read or implemented.
Talk to your family and document them independently so you care for those who will plan your farewell. This planning reduces stress in emotional times and a peaceful and respectful celebration of your life.
Personal, household effects, and prized possessions
When making gifts, it’s important to be specific to avoid misunderstandings or disputes. Describe each item clearly, including any prized possessions, and consider naming alternate beneficiaries if the primary ones predecease you or can’t inherit for any reason.
Listing personal items ensures clarity and fairness and honours your wishes and relationships. Be specific about the item, its condition and any special significance to it.
This will help the Executor in their duties and ensure your wishes are carried out transparently. Thoughtful planning of personal gifts is a way to keep connections and extend your legacy beyond the material wealth.
Alternate provisions and contingent beneficiary
Every gift should have a fallback so even if the original intention can’t be fulfilled the distribution will be in line with your overall wishes. In such cases, a secondary beneficiary, also known as a contingent beneficiary, can inherit if the primary beneficiary is deceased or cannot be found. This includes naming an alternate beneficiary or allowing the item to fall into the residuary clause of the estate.
Alternate provisions avoid complications or legal disputes and provide a clear path for your Will to be followed. They cover for unexpected changes such as the primary beneficiary dying and ensure your assets get to the intended hands.
Your planning in this area shows how much you care for your beneficiaries and estate. It shows you are responsible and understand that life is dynamic and requires flexible yet firm guidance in estate distribution matters.
Residuary clause
A residuary clause captures any unallocated assets in your estate and ensures everything is covered and managed. This clause deals with anything not specifically gifted and provides a safety net that aligns with your overall wishes.
A residuary clause is essential to a complete estate plan as it ensures nothing is left out. By allocating the residue to specific beneficiaries or purposes you have final control over your entire estate regardless of any oversights or surprises.
Having a residuary clause confirms your Will is comprehensive and your estate management is cohesive. It fulfils your instruction that all assets, physical or intangible, are managed according to your wishes and directions.
Beneficiaries
Name beneficiaries by full name and address to avoid confusion and ensure your wishes are carried out. This will help executors find and identify the correct person or entity as the rightful recipient.
Naming beneficiaries clearly prevents disputes and holds everyone involved to a clear understanding. It ensures the distribution of your estate is fair and in line with your explicit wishes and conditions.
This goes beyond just naming, it involves potential contingencies for the beneficiaries’ status. If circumstances change, such as the beneficiary dying or can’t inherit for any reason, adjustments or alternate plans will ensure your objectives are still met.
Leaving Property to Minor Children
Minors need a trust to manage their inheritance until they reach the age of majority as set out in the estate plan. Detail this in your Will and specify how the assets should be managed and distributed as they come of age, often in stages to protect the young beneficiary from mismanagement.
Having a trust for minor beneficiaries gives them security and guidance as they grow and use the assets they inherit in a responsible and planned way. The trust can be structured around educational milestones, life events or other markers and allocate resources according to the child’s development.
Trustees manage these assets until the beneficiaries reach specified ages or conditions and act in the best interests of the minors. This allows you to plan your legacy with wisdom and compassion and favour strategies that benefit future generations.
Disinheriting
While the law requires support for dependents such as spouse and minor children, you can exclude others from your Will if there are good reasons and considerations. Make sure you state the reasons for disinheriting to avoid disputes and potential claims against your Will on grounds of lack of capacity or coercion.
Disinheriting involves difficult decisions often based on complex relationship dynamics or personal values. Clear documentation helps preserve the integrity and intention of your Will and provides legal defence if challenged.
If you can, communicating your reasons and decisions may reduce tensions and clear the air with those involved. Even if these conversations are hard, they may prevent escalations that challenge the Will after you’re gone.
Guardians for children
Naming guardians for minors is important in your Will, who will care for and raise them if both parents are unable to. This decision requires careful thought and discussion with the nominated guardians to make sure they are willing to take on this responsibility.
Choosing a guardian is a deep expression of trust and foresight for the child’s future. The nominated person should share your values and vision and provide stability and continuity in an emergency.
Have open conversations with potential guardians, acknowledge their concerns and weigh their capabilities and desires. A transparent process will ensure the chosen guardians are prepared and willing and your wishes align with the practicalities and plans for the child’s care.
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Signing the Will to Make it a Valid Will
The Will must be signed in the presence of two independent witnesses and each page initialled to prevent any alterations after signing. Witnesses cannot benefit from the Will and must be of legal age and sound mind. This process validates the Will and reduces challenges.
By doing this you are making the Will enforceable and demonstrating a commitment to process and the South African legal framework. The witnessing provision ensures the document is authentic and that it reflects the decisions of a competent person.
By following these you are validating the document and reducing the risk of challenges or disputes. This protects your wishes and guards against claims of procedural irregularities.
Glossary of terms
Beneficiary:
Person or organisation receiving estate assets or bequests.
Bequest:
Specific item or amount of money left to someone in a Will.
Codicil:
Amendment to a Will, requires the same formalities as the original document.
Estate:
Total of all property, possessions and liabilities left behind after death.
Executor:
The person appointed to manage the estate and carry out the Will.
Intestate:
Dying without a valid Will.
Legacy:
Property or money through a Will.
Living Will:
A separate document specifying medical treatment wishes when the person is incapacitated.
Minor:
A person under the age of majority, requires a trust for inheritance management.
Personal Representative:
Another name for Executor, acts on behalf of the estate.
Residue:
The balance of the estate after specific bequests and liabilities have been settled.
Revoke:
To cancel a Will.
Testator:
The person who makes the Will.
Trust:
A legal arrangement to manage property for beneficiaries until certain conditions are met.
The service at LegalWills.co.za
At LegalWills.co.za it takes about 20-30 minutes to prepare a Will. You just step through the 10 sections, answering the questions presented to you in plain language. You don’t need any legal knowledge at all to go through the service.
Government programs can play a big role in long term care planning especially when setting up a special needs trust. These programs provide financial support and benefits for people with special needs, so they have ongoing income without risking access to these valuable benefits.
To make your document a Last Will and Testament you need to download and print it. Then sign it in the presence of two adult witnesses who are not beneficiaries in the Will. These can be any two adults; friends, neighbours or co-workers, as long as they have nothing to gain from the Will.
Once signed and witnessed it becomes a Last Will and Testament. There is no need to have the document notarized, stamped or signed by a lawyer. Nor does the document need to be registered.
Just store the document somewhere safe, somewhere your Executor knows and can access. After you have passed away your Executor will take the document to your local probate court and it will be accepted as your Will and filed with the courts.
Conclusion/Final Thoughts
In conclusion, understanding the importance of a will, the role of an executor, and funeral options is crucial for ensuring that a deceased person’s wishes are respected and their loved ones are taken care of.
By having a will, designating a beneficiary, and choosing an executor, individuals can ensure that their estate is distributed according to their wishes. This planning helps to avoid disputes among family members and provides clear instructions for managing and distributing assets.
Funeral options should also be considered carefully, taking into account the deceased person’s preferences and cultural background. By planning ahead, individuals can ensure that their final wishes are respected and that their loved ones are supported during a difficult time.
Ultimately, planning for death is an essential part of life. By being prepared, individuals can ensure that their loved ones are protected and their wishes are respected, providing peace of mind for both themselves and their family members.
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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