Death and taxes, absolute certainties! Death is inevitable and having a valid WILL in place can make all the difference, to an already difficult time for your loved ones.
Unpleasant to think about but think about we must! A valid and executable will, ensures that your wishes are carried out and leaves your loved ones with order instead of chaos.
The last thing your family needs to be burdened with is what to do next, when they trying to grieve the loss of a loved one. Having a valid will in place is not only the responsible thing to do, but also affords them the last piece of care you leave behind.
Research shows that more than 86 percent of South Africans do not have a will in place and risk leaving those they love behind with uncertainty and possibly debt.
So, what do you need to know, let s take a closer look?
What happens if you don’t leave a will?
Contrary to a popular belief, your estate will NOT go to the state. Instead, your estate will be wound up in terms of the Intestate Succession Act. Which means that your estate will be finalised in terms of the guidelines offered by this Act. Benefits will still be paid to your beneficiaries. Beneficiaries may include a spouse, biological children, adopted children, parents or other blood relatives as determined by the Act.
Its only where there are NO legal beneficiaries at all, that your estate will be transferred to the Guardian’s Fund (Master of the High Court), and if it is unclaimed after a period of 30 years, it will then be forfeited to the State in terms of our current law.
Here are the basics to keep in mind when drawing up your will.
- A Will must be in writing.
- A Will is a legal document, and it can only legally be drafted by a person who is 16 years or older.
- The Will must be signed by the testator (person whose will it is) on each page, as well as at the end of the document (last page).
- The testator should sign the Will in the presence of 2 or more witnesses. These witnesses should be at least 14 years old and be competent to give evidence in court.
- It is not required that the witnesses know the content of the Will, just that they are witnessing that it is the testator’s Will.
- It’s essential to keep in mind that no witness may inherit in terms of a Will. (i.e. a person who is included to receive a benefit in your Will, cannot be a witness to your Will)
- The witnesses must also, in the presence of the testator and each other, sign the Will at the end of the document and not on each page.
- Though not a requirement, it is beneficial to place a date on the Will. In the case that the testator leaves behind more than one Will, this will help determine which one was the last and final.
Many clients may not be aware of these formalities and yes one can go to court if needed to “formalise” a will, but this just leads to unnecessary delays, at a time when your loved ones don’t need the added stress.
Despite the current pandemic, for now, the provisions of the Act have not been relaxed to allow for, the signing of a Will by means of electronic signatures.
It is also important to note that your original and signed Will is what is required. So, it is imperative to keep this safely stored and for someone you trust to know where it is stored.
For a minimal fee (as little as R60 per annum), many insurers offer to keep this stored for you. Its best to have your investments, life cover documents and other important financial documents in a central place.
How can you ensure that the process runs smoothly?
Regardless of whether you leave a valid Will of not, all estates must go through the validity process. However, having a Will, will speed up this process and informs the Master of the High Court how the person wanted their estate to be shared.
If you die intestate, this means you die without a Will or your Will is invalid, then your estate will be distributed in accordance with the Intestate Succession Act.
,Dying intestate means that your estate will be divided amongst your surviving spouse, children, parents, or siblings according to a set formula.
Where there is a surviving spouse and one child, the surviving spouse will inherit the greater of a child’s share or the amount of R250 000 (this amount is fixed from time to time).
In a situation where your estate is valued at R2 000 000 (two million rand) and in the unfortunate event that you are no longer with us and you leave behind a spouse and three children, then your estate will be divided by four (being your surviving spouse and three children), making the child’s share R 500 000 (five hundred thousand rand).
As the child’s share is greater than R250 000, your spouse will inherit R 500 000 leaving R1 500 000 (one & half million rand) in the estate, where each child receives R 500 000 (five hundred thousand rand) each.
Dying intestate may result in unintended persons benefitting from your estate, leaving your true wishes not being fulfilled.
Where you have not left a valid Will, you would not have appointed an Executor to oversee the winding up of your estate.
In this instance, an application will have to be made to the Master of the High Court to appoint an Executor to wind up your estate. This could cause additional hardship for your family. This person would not be known to your family and may also lead to delays in the winding up of your estate.
What should you know about nominating an Executor?
It is essential to have an Executor who know what they doing to prevent delays on the administration process and to effectively advise on the estate duty taxes and capital gains tax.
The appointment of an inexperienced Executor may result in the following:
- The delay of winding up the estate, and the beneficiaries only receiving their inheritance after many years and or receiving way less than what they were supposed to because of the lack of knowledge of the Executor.
- Possible penalties and interest on estate duty if not paid over to SARS within 12 months of date of death.
- The costs of administration may increase significantly.
- The beneficiaries will suffer, especially if the beneficiaries are minors.
It may be tempting to nominate a spouse or trusted family member to be your Executor to save costs. However, with the lack of experience this may end up costing more in the long run.
We are pleased to share our partnership with one of the major insurers who will allow us to assist with the drafting of your will and the safe storing of it.
Most importantly our specialist advice ensures a valid and executable will is put in place. Making sure your last wishes are ultimately followed is why we want to assist.
Give us a call and allow us to put your mind at ease.
Leave a WILL, so there is a clear way forward for those you leave behind!
Call us now if you have any questions, on
086 162 0000.
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