Having a valid will goes beyond ensuring that your wishes are respected, and your affairs are dealt with properly when you die. Not having a will can leave your family in difficulty and your estate in disarray.
This article explains what a valid will is, and why it should be reviewed on a regular basis.
Tip: Is debt preventing you from creating a financial legacy for your family? Debt consolidation may be of assistance.
What is a valid will?
A will is a legal document that sets out instructions regarding inheritance, and who should administer your estate. From a legal perspective, a will needs to meet certain requirements to be considered valid.
“A valid will fulfils the legal requirements in terms of the wills act,” explains Chris Weyer, head of marketing and communication at Momentum Trust.
“To be valid, a will needs to be signed by the testator – the person who makes the will – in the presence of two witnesses. They must sign the will together in your presence and must be able to testify in court to having done so.”
You need to be 16 years old or above to make a will, and witnesses should be at least 14 years of age.
“Make sure you sign each page of your will and have two independent witnesses,” says Lana Visser, a financial planner at Fiscal Private Client Services. Neither of your witnesses, she says, should be beneficiaries of your estate.
“Although dating your will is not a legal requirement, it is useful to do so, as it avoids confusion regarding your most recent wishes,” Visser notes.
A will is a legally binding document, but the validity thereof can be challenged if the person making it is not of sound mind, the wishes contained therein are in breach of public morals or the law, or if a newer will has been signed since the original was drawn up.
If the master of the High Court recognises the will as being your final will and testament, and there is no dispute, the next phase of estate administration can commence.
What should you take into consideration?
“When you draw up a will, you get to decide what you would like done with your estate. Providing clear instructions means that family arguments can be avoided,” explains Traci Porter, registered financial adviser at Efficient Wealth.
“In addition, your estate is wound up in a shorter period of time than if you die intestate, which means your family won’t have to wait for a long time to inherit,” Porter notes.
Having a will allows you to dispose of your assets fairly, but it’s worth preparing your loved ones if a child or family member may inherit more than others. If, for example, one beneficiary takes care of an aged parent, you may choose to bequeath a greater amount to them.
“This can help to avoid any surprises and potential conflict,” Visser says.
You need to nominate an executor in your will, as well as a trustee if appropriate, or a guardian of minor children. Although it may be tempting to appoint a family member as your executor, Visser says loved ones can be emotional at this time, and may not have the requisite knowledge to administer an estate.
“It may be best to appoint a professional to deal with this duty,” she says.
Porter says the master of the High Court has to approve the chosen executor, but if a family member would really like to be involved in the process of winding up an estate, they should consider becoming a co-executor.
When you nominate a guardian or guardians for minor children, proper planning is very important.
“A guardian should be aware that they have been appointed, and understand the responsibility they are undertaking,” Visser points out.
Is your will executable?
It’s important to review your will on a regular basis – around once a year – to ensure that your wishes are still correctly documented and sufficient provision has been made to ensure they can be fulfilled, says Weyer.
“An updated and valid will is a step in the right direction to safeguard a legacy while providing the comfort of knowing that your estate will be attended to properly,” he says.
“However, a valid will is only half the solution as it also needs to be executable.”
An executable will is a valid will underpinned by solid financial planning, which means there will be enough money in your estate to pay legacies and settle debt, and provide for business succession, while taking the distribution of assets into consideration.
“A valid will that complies with the legal formalities can be compared to a stationary sports car – it’s beautiful to look at. However, what makes that sports car go is the engine. This is financial planning, driven by a financial adviser, which can help you to leave the kind of legacy you want,” says Weyer.
Porter says a financial adviser can help you to draw up a will at no cost.
Tip: Solid financial planning will ensure you have enough money in your estate to carry out your wishes. Consider investing in unit trusts.