Where there’s a will there’s a way

It is surprising to find that many people we see do not have an up to date Will in place.
Most people own something, whether it’s a house, a car or even a valuable piece of jewellery. If you don’t want the government to decide where your assets go when you die or, more importantly, who will be in charge of your children and funds owed to them, then you need to draw up a Will.

What is a Will?
A Will is a legal document that states your wishes regarding what happens to your assets/property when you die and who is responsible for the care of your minor children.

Why do I need a will?

Because you don’t want the government deciding who inherits your assets
If you die without a Will in place (intestate), the Intestate Succession Act will determine how your property is distributed. This can include bank accounts, property, and any other assets you own. If you die intestate and are survived by a spouse, your spouse will inherit the estate. If you have a spouse and children, the assets will be split between them in equal shares. If your children are minors, their share would be administered by their legal guardian. If you are single with no children, your parents would inherit, thereafter siblings and other family members in terms of the law.

Whatever your situation, the intestate laws will decide what happens. The government will appoint an executor and your estate will take a long time to wind up. If this idea doesn’t sound all too appealing to you, then you need to draw up a will.

Because you don’t want the government deciding who raises your children
In your Will, you can designate a person (guardian) to care for your children if you die before they become legal adults. The guardian is there to care for the children’s emotional wellbeing. You can also designate a trustee to manage your money for your children until they reach adulthood. You can appoint one person to act as both guardian and trustee, or choose two people to carry out the separate roles.

If you and your partner both die without a Will, the courts and social services will look to appoint a guardian to raise your children and your money will go into the government’s Guardians fund. This is far from an ideal situation.

Because you don’t want stress in the family
Another, often forgotten, reason to have a Will is to ensure no tension occurs within your family after you are gone. Without a Will, you may have relatives arguing over your possessions and everyone may want input on what should happen to your assets. Drawing up a Will ahead of time will reduce the chance of strife between family members.

Because you are part of a blended family
Blended families can benefit greatly from a Will. For example, John is married but brought two children into the marriage from a former relationship. He can dictate in his Will that he would like half of his assets to go to his former partner, whom has equal custody of their children, and the rest to his spouse.

Another point to remember that if you already have a Will and subsequently get divorced, the legislation allows you a six month window period. If you die within that period, your estate will devolve as if your former spouse had predeceased you. After six months, if you still haven’t changed your will, the Master will assume that you still intended for your former spouse to inherit your estate, often not the intention!

Because you are unmarried, but live with your partner
Unmarried couples also need a Will. Unfortunately, common law marriage is not recognised as a legal relationship by SA law, so if one partner dies, none of their possessions will go to their surviving partner. This could be devastating emotionally and financially. Let’s say the deceased partner owned the home they were both living in and the surviving partner was simply paying a monthly (non-contractual) rent. The surviving partner has no say in what happens to the house he/she is currently living in. With a Will, the homeowner can state the house is to be left to the partner versus it automatically going to his/her parents.

Because you want to contribute to a charity
Many people state that they would like a portion of their assets to go to a favourite charity organisation in their Will. It’s an easy way to contribute to a good cause.
In addition to naming asset distributions, a Will can also be used to donate your organs, specify funeral arrangements, and state preferences about life support by creating a Living Will.

What doesn’t a Will cover?
Wills generally cover the bulk of your assets, but some assets are not covered by wills. Life insurance policies fall outside a Will if they have a beneficiary nomination. As an example, if you pass away and your Will states you want your life insurance payout to go to your daughter, but your life insurance policy states your ex-spouse as your beneficiary, the payout will be made to your ex-spouse. This is just one example as to why reviewing your financials annually and after every big life event is so important.

Other assets not covered by a Will are retirement assets such as living annuities and retirement funds (Retirement Annuities, Provident and Pension funds, and Preservation funds) which all have beneficiary nominations. However, in terms of the Pension Funds Act, the Trustees of retirement funds must identify your dependants and distribute the assets to them equitably, regardless of who you nominate as a beneficiary. This could have implications if, for example, you are financially supporting a family member other than your spouse or children.

How do I create a will?
There are a few things to know before drawing up your will.

• Don’t be tempted to download a template from the internet. The consequences of having a Will that has not been properly drafted can be significant.
• If you have an antenuptial contract, the terms thereof must be taken into account when drafting your Will to ensure that the two documents do not contradict each other.
• Be sure you use your full name even if you are known by a nickname.
• When you decide who you would like to be the executor of your estate, talk to them about it first. We suggest nominating your partner and failing them, a trusted family member or friend. They in turn can then appoint an administrative executor.
• Put together a list of your assets that you want noted in the will.
• Decide if there are specific assets you want to leave to specific beneficiaries.
• Put together a list of the names of your beneficiaries and your relationships to them. Decide to whom assets pass to if a beneficiary dies before you.
• If you have minor children; consider the establishment of a minor’s trust in the event of your death and nominate the Trustees for this trust.
• Consider who you would want as the guardians for your minor children and discuss this with them before nominating them.

When preparing to create a Will it’s important to know:

• You must be at least 18 years old.
• It must be written in sound judgment and mental capacity.
• The document needs to clearly state that it is in fact your Will.
• You need to name an executor who will ensure the wishes stated in your Will are carried out.
• You need to sign it in the presence of at least two witnesses, neither of whom can be beneficiaries of your estate.