What to consider before drafting your will
In South Africa we are fortunate to have freedom of testation, or simply put, if you are 16 years and older, you can choose whom the beneficiaries of your earthly possessions will be after your demise. As such, it is important that your Will is properly executed.
Should you die without a Will, South African law stipulates whom the heirs to your estate will be.
Before drafting your Will, one of the most important documents to be drawn up in one’s lifetime, the following should be kept in mind:
Marital Status: Your marital regime plays a significant role as this will determine any legislative implications when leaving your assets to anyone other than your spouse. For example, if you are married In Community of Property you and your spouse’s assets will form part of your deceased estate and your spouse will automatically (by law) be entitled to 50% of the combined asset value.
Minor children: Our law prescribes that any benefit to a minor (under the age of 18 years) derived from a deceased estate must be placed either in a Testamentary Trust (created in your Will) or, in the case where you die without a Will, paid over to the Guardians Fund held by the Master of the High Court.
Administration: You can provide in your Will that the inheritance of your minor child or children must be administered in trust until the age of 18 years (or any later age that you may prefer). Your nominated Trustees are there to manage assets in the best interests of the children (i.e. paying school fees/further education,etc).
Beneficiaries with special needs: A testamentary trust can also provide for dependants with special needs (i.e. handicapped children). who require greater care. Your Trustees will address these needs.
Guardians for minor children: Guardians are nominated in your Will to look after minor children after the death of both natural parents. Where you have provided for a testamentary trust, the guardians will be able to attend to their responsibility in taking care of your minor children’s needs.
Nomination of an executor: This is the person or company whose functions will be to take over the administration and management of your estate upon death. To be an executor is not always an easy task as it requires certain expertise and adequate knowledge in the deceased estates field of business as well as the law to which is refers.
Burial preferences: You may indicate in your Will whether you wish to be buried, cremated or even instructions about organ donation. It is important to note that this is only a wish in your Will and that you should discuss these preferences with your next-of-kin to ensure your wishes are respected.
Asset and liability details: To ensure that your executor will be able to carry out your instructions according to your Will, you will be required to disclose details of your local and offshore assets as well as liabilities. This is to establish a possible cash shortfall in your estate due to various charges and circumstances, for example claims against the deceased estate, maintenance claim by divorced spouse, executor fees and administration charges etc.
Current and future circumstances: It is advisable not to regard the Will as a document that will only come into force when you have reached an advanced age. Death is inevitable and can happen at any time. Therefore, ensure that your Will fits your present circumstances and provides for the future.
To ensure that your legacy lives on long after your departure and in accordance to your wishes, seek professional assistance with the drafting of your Will.