Death can leave a lot of confusion and chaos. What happens to your possessions when you die can have a profound effect on those you leave behind. But you can soften the impact by drawing up a will.
JustMoney reached to experts to help you better understand the process and the choices that you have.
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What is a will?
According to Anthony Keyser, director of AK Inc, a company that specialises in the administration of deceased estates and drafting of wills, a will is a written document in which someone indicates what is to happen with their assets once they die.
“It’s drawn up by someone prior to dying in which they express their wishes with regards to their estate before they die,” says Keyser.
Why have a will?
“It’s important to have a will as it is an unequivocal document that sets out your intentions in as far as the distribution of your estate is concerned, especially if one has specific items that they want to leave to specific people,” says Filipe Marques, senior partner at Marques Soares Fontes Attorneys.
Janine Bredenkamp, founder of J Bredenkamp Inc Attorneys, Notaries, Conveyancers and Administrators of Deceased Estates, says you only need a will if you're concerned about those close to you who are left behind and you have assets.
“After all, over and above their grief they will be saddled with finalising your financial affairs and the division and allocation of your assets. Dying without a will may turn out to be a disastrous administrative mess descending into acrimony and chaos that can literally take decades to resolve, says Bredenkamp.
Does a will have to be professionally prepared?
According to Stella Pickard, CEO and co-founder of QuickWill, an online will drafting platform, any person can draft a will for themselves.
“You’re not required to use a professional. However, it’s important that you comply with the formalities for signatures and witnesses of the will. It’s therefore recommended that you get assistance when drafting your will,” says Pickard.
“A professional will be able to advise you correctly and help you avoid any financial pitfalls. They will also ensure that your estate is finalized effortlessly when you die,” adds Keyser.
According to Marques, a will may also be contested (for example, by an irate family member who was left out) and therefore must be drafted properly.
“For the same reasons you would execute a written agreement, you would also execute a properly drafted will,” says Marques.
Your will is one of the most important documents you will ever draft, and just as you wouldn’t want to the sale of your house drafted on a napkin, nor should your will be drafted negligibly.
Bredenkamp says very many laymen’s wills end up void or embroiled in litigation for lack of clarity or non-compliance with formalities.
“The formalities may be daunting where a will is attested with a “mark” or by other means. A defective will may still be enforceable but an expensive High Court application is required. Likewise, where the original is lost, the consent of the High Court is required before the copy can serve as an original. Specialist attorneys and accountants therefore keep the original in a fire proof safe,” she says.
What if I don’t have dependants?
If you have assets or money that you wish to go to a specific person or cause, you need a will, regardless of whether you have dependants, says Pickard.
“Remember, your assets don’t necessarily have to go to your traditional dependants, but can devolve upon anyone including siblings, parents, nieces and nephews and even a charity” says Marques.
Watch the video for more: Who needs a will?
How much does it cost to have will prepared?
Some lawyers, institutions like banks, financial advisers, and other well-known will providers, will offer you a will for free. However, this does not come without a significant cost.
According to Pickard, when a will is free, the person drafting it usually insists on being the executor of your estate. Executor's fees on your estate amount to 3.5% (plus VAT) on the gross asset value of your estate. Therefore, you’re actually paying a lot of money for the drafting of your will. Other will providers could charge you a fee - which ranges from R350 to R4000 - for the drafting of your will, but you can then choose your own executor, which could result in major savings in the long term.
“Always ensure you know what the fee for drafting your will is, upfront. If it's free, make sure you ask whether you are obliged to make the service provider your executor,” she says.
Marques says the cost depends on the complexity of the will as this will dictate the time it will take an attorney to draft it.
“A simple will (which is normally your best will) is relatively inexpensive but the cost can fluctuate from R1,500 to R3,500,” says Marques.
What are the implications of dying without a will?
“The legal term for this is that you die intestate,” says Pickard.
That means that your assets are distributed in terms of the provisions of the Intestate Succession Act, and not according to your wishes.
According to Pickard an executor will be nominated and appointed by the Master of the High Court, instead of you appointing your own trusted executor. If you have minor children who receive an inheritance, their inheritance will be managed by the government's Guardian's Fund until they reach the age of 18.
“In South Africa, we generally apply Roman law to deal with the division of the estate because it’s a very fair and logical way of dividing up assets between heirs. In this case your marital regime (how you are married) and the number of children left behind have an influencing factor on the distribution,” says Marques.
He says African customary law may also influence the dissolution of the estate. However, this has been seen as an unfair manner in which to distribute the deceased’s assets as it could, if strictly applied, lead to the eldest male heir receiving all the assets.
“The courts, in deciding these types of matters, have looked at the deceased’s lifestyle and how the person lived same. Did he/she live a very western way or did was African custom followed as a general rule?” says Marques.
Is my will valid if it was made in another country?
According to Marques, your will is valid if you prepare it in another country and you comply with the formal requirements of witnesses and signatures in terms of South African laws.
“The important thing is that it’s executed in the proper manner and witnessed correctly. It’s also important that the will deals with assets over which our courts would ordinarily have jurisdiction. These are the items which, if challenged, our courts could make a ruling over,” he says.
Bredenkamp says a valid will can be made in any country but it’s advisable to deal with foreign assets in terms of a foreign will and with local assets in a local will.
“The complexities of winding up two separate estates are far less than having an integrated process spanning different legal jurisdictions and officials. The wording of the wills is therefore crucially important so as to ensure they do not end up duplicating the same subject matter,” she says.
According to Keyser, foreign assets don’t fall within the jurisdiction of the Master of the High Court in South Africa.
“Foreign assets of a South African estate will need to be administered in terms of the law of the country in which the assets are situated. A person having assets in both South Africa and elsewhere will need separate wills for each country with regards to the assets, that comply with the law of the country where the assets are situated,” says Keyser.
What makes a will valid?
According to Gerhard Meyer, head of technical support at PSG Wealth, the formalities for a valid will in South African Law are:
- the will must be signed at the end by you (the testator) and initialled on every other page;
- the will must be signed at the end by two competent witnesses (over the age of 14 and not set to inherit any benefit in terms of the will) and initialled on every other page; and
- the testator and the witnesses must all sign in each other’s presence i.e. must be together when signing the document.
“A will is invalid if it doesn’t comply with the formalities of the Wills Act 7 of 1953 with regards to the formal requirements regarding the execution of wills,” says Keyser.
“If you are elderly, recently bereaved or have a terminal, mental or other serious illness, we recommend asking a medical practitioner, such as a GP, to act as one of your witnesses. This can help to prove your understand what you are signing,” says Pickard.
Marques says there are many other things that can invalidate a will but ultimately only a court can decide. These include:
- the form of the will (i.e. how it was executed);
- the signature of the deceased (this could be contested as a forgery);
- a testator who has lack of capacity;
- a testator who was unduly influenced or coerced into executing his will; and
- A more recently executed will.
Updating your will
Keyser says that it’s important to regularly review your will.
“An update is usually required when you acquire or dispose of an asset ), you get married, someone close to you passes on, when you have a child, or when your children reach age of maturity,” he says.
According to Marques, you should review your will every five years.
READ MORE: Why is it important to update your will?
To easily draft your own will for free, visit any of these websites:
To see which attorneys are participating in the National Wills Week this year, visit the Law society of South Africa website.
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