Why is it important to have a valid Will in place?

A Will refers to a final statement reflecting how you would like your assets to be dealt with following your death. It is an extremely important document and not having a valid Will in place can lead to unforeseen difficulties for family members.

Yet most of us tend to postpone the drafting of our Will until the ‘right time’ comes around. This may well be because thinking about our Will leads to us thinking about our own mortality and for this reason we often avoid doing so. The truth is that there is usually never a ‘right time’ and having a valid Will in place will ensure that the winding up of your estate is as pain free a process for family members as possible.

If you die without a valid Will in place, you will be regarded as having died ‘intestate’. The Intestate Succession Act 81 of 1987 specifies how the estate of such person should be divided between his/her family members. It makes specific provision for the surviving spouse, ensuring that he/she will inherit the first R250 000.00 of the estate or a ‘child’s share’ whichever is greater. A ‘child’s share’ is calculated by dividing the number of children of the deceased (both surviving and previously deceased children) and the number of spouses who have survived the deceased. Problems arise in such instances where for example the deceased owned immovable property. If he/she owned immovable property and died intestate, the provisions of the Intestate Succession Act would provide that the immovable property then be jointly owned by the surviving spouse and children (or any grandchildren surviving their parent who was a child of the deceased).

What are the requirements of a valid Will?

• You have to be 16 years of age or older and mentally competent in order to create a Will.
• Your Will must be in writing.
• You must sign the Will in the presence of two witnesses who are 14 years of age or older.
• You and your witnesses must initial every page of the will and sign the last page in full.
• The witnesses cannot be beneficiaries of your Will.

In your will you can:

• Appoint an Executor.
• Divide up your assets.
• Appoint a guardian for your children.

An Executor is the person that will make sure that your estate is dealt with according to your Will, and will make sure that any outstanding debts are settled. Where no Executor is appointed in your Will, the Master of the High Court will appoint someone (usually a family member) to act as Executor of your estate. The Executor has to be living in the country you reside in at the time of your death. In practice, you would nominate two Executors in your Will in order to avoid an instance where one of the appointed Executors has emigrated or passed away.

In the unfortunate event that both you and your spouse die in an accident, appointing a guardian to look after your children is of the utmost importance. If you have not appointed a guardian in your Will, the state will appoint a guardian. While preference is given to family members in such instances, it is in the best interest of you and your children to put something in place so as to ensure your children will be looked after by the person/s who you decide is best.

Can I draw up my own Will?

You certainly can do so but, as mentioned above, there are a number of requirements which must be met in order to ensure that your Will is in fact valid. Approaching an Attorney to draw up your Will for you and making annual amendments with the assistance of your Attorney is highly recommended. Life changes. Circumstances change. You may not remember to make these amendments yourself but an Attorney would assist you in picking up on any errors or amendments needed. Such changes would include divorce, changes beneficiaries and so on.

Using an Attorney with the necessary experience in Estate Law will also ensure that you are advised of any tax implications relating to your Estate, as well as ensuring that your Will is kept in a safe place and readily available.

Protect your family. Do not let the uncertainty of life, disadvantage them. Draft your Will and be prepared. If you need assistance with the drafting of your Will contact our Offices to set up an appointment with one of our Attorneys.