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Cape Town - For many people, a signed will is one of the things they avoid thinking about, let alone act on, according to Geraldine Macpherson, senior legal marketing specialist at Liberty.
“It could be a case of not realising that their estate or assets will still need to be handled when they pass away – regardless of whether they have a will or not,” she warns.
“It makes more sense to dictate how this will be done according to your wishes than to let rigid laws take effect – because they will.”
Generally, people tend not to review their will until someone prods them to do so. In many cases the will was done 10 to 20 years ago.
During this time, personal and financial positions as well as legislation might have changed drastically.
Factors to consider when drawing up a will
- It should be written in the language that you actually speak at home and when you read it, it should say exactly what you want it to say.
- If there is any Latin or legalese in it that you are not sure of, make sure that those words or phrases are removed and written in your language of choice.
- Get an independent third party to read it as well. Ensure that there are no ambiguities in the will by checking that their interpretation is the same as yours.
- Try to keep things simple and practical. The temptation to rule from the grave tends to lead to very complex and often costly estate planning exercises that achieve very little at the end of the day.
- A will must be in writing and signed at the bottom of every page and on the last page by the person making the will. This must take place in the presence of two witnesses, who must also sign at the bottom of every page and on the last page.
- The witnesses must not be people who will benefit from the will in any way.
- Remember to date the will, as this can prevent any confusion should more than one will be found at the date of death.
What happens to the estate if there is no valid will?
In this situation, the Intestate Succession Act will apply and the spouse and/or descendants (or ascendants like parents/grandparents, if there are no descendants) will inherit in a prescribed format.
If there are minor children their inheritance may end up being paid into the Guardian’s Fund, which is not ideal. This may also result in assets having to be sold, as the Guardian’s Fund may only receive cash.
Think about the devastating effect this could have not only on the surviving spouse, but also on the children.
If a married person dies without a valid will, the spouse will inherit (depending on what type of marriage was entered into, though).
If there are children, then the spouse and the children will inherit equally. The spouse’s share must be at least R125 000 (provided there are sufficient funds).
What are the costs involved?
The cost varies depending on the complexity of the will.
Some attorneys and trust administration companies will draft the will for free, provided that they are appointed the executors.
Banks also tend to charge reduced fees, provided that they are the executors.
They do this because they will then be able to collect the executor’s fee of 3.5% when the estate is handled.
If the will requires a complex testamentary trust to be included, the fee could be in the region of R10 000 – R15 000.
Who are the best people to draw up a will?
The more complex the will, the greater the expertise the drafter will need.
It is advisable to refer to a professional person who drafts wills as part of their business to ensure that the will is not only technically sound (complies with legislation), but also practical. This could be a lawyer, a bank or a trust administration company.
Sometimes, what the maker of the will wants to have happen upon death is simply not legally possible, or it may be very difficult to achieve.
An experienced drafter would point this out and propose an alternative solution.
- Fin24
Do you have a pressing financial question? Post it on our Money Clinic section and we will get an expert to answer your query.
“It could be a case of not realising that their estate or assets will still need to be handled when they pass away – regardless of whether they have a will or not,” she warns.
“It makes more sense to dictate how this will be done according to your wishes than to let rigid laws take effect – because they will.”
Generally, people tend not to review their will until someone prods them to do so. In many cases the will was done 10 to 20 years ago.
During this time, personal and financial positions as well as legislation might have changed drastically.
Factors to consider when drawing up a will
- It should be written in the language that you actually speak at home and when you read it, it should say exactly what you want it to say.
- If there is any Latin or legalese in it that you are not sure of, make sure that those words or phrases are removed and written in your language of choice.
- Get an independent third party to read it as well. Ensure that there are no ambiguities in the will by checking that their interpretation is the same as yours.
- Try to keep things simple and practical. The temptation to rule from the grave tends to lead to very complex and often costly estate planning exercises that achieve very little at the end of the day.
- A will must be in writing and signed at the bottom of every page and on the last page by the person making the will. This must take place in the presence of two witnesses, who must also sign at the bottom of every page and on the last page.
- The witnesses must not be people who will benefit from the will in any way.
- Remember to date the will, as this can prevent any confusion should more than one will be found at the date of death.
What happens to the estate if there is no valid will?
In this situation, the Intestate Succession Act will apply and the spouse and/or descendants (or ascendants like parents/grandparents, if there are no descendants) will inherit in a prescribed format.
If there are minor children their inheritance may end up being paid into the Guardian’s Fund, which is not ideal. This may also result in assets having to be sold, as the Guardian’s Fund may only receive cash.
Think about the devastating effect this could have not only on the surviving spouse, but also on the children.
If a married person dies without a valid will, the spouse will inherit (depending on what type of marriage was entered into, though).
If there are children, then the spouse and the children will inherit equally. The spouse’s share must be at least R125 000 (provided there are sufficient funds).
What are the costs involved?
The cost varies depending on the complexity of the will.
Some attorneys and trust administration companies will draft the will for free, provided that they are appointed the executors.
Banks also tend to charge reduced fees, provided that they are the executors.
They do this because they will then be able to collect the executor’s fee of 3.5% when the estate is handled.
If the will requires a complex testamentary trust to be included, the fee could be in the region of R10 000 – R15 000.
Who are the best people to draw up a will?
The more complex the will, the greater the expertise the drafter will need.
It is advisable to refer to a professional person who drafts wills as part of their business to ensure that the will is not only technically sound (complies with legislation), but also practical. This could be a lawyer, a bank or a trust administration company.
Sometimes, what the maker of the will wants to have happen upon death is simply not legally possible, or it may be very difficult to achieve.
An experienced drafter would point this out and propose an alternative solution.
- Fin24
Do you have a pressing financial question? Post it on our Money Clinic section and we will get an expert to answer your query.
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