The death of a loved one comes with many emotions, and so too does the division of their estate. Further emotional conflict and the potential for hurt feelings and recriminations can all be avoided by undertaking the simple task of drawing up a valid will. This too is often an emotional process in and of itself but is one of the most important factors of estate planning.
The advantages of drawing up a will
1. Freedom of testation and ability to provide for vulnerable family members
By drawing up a will you ensure that your assets are disposed of in accordance with your personal wishes as opposed to intestate legislation. As such, you ensure that your estate is distributed between your chosen beneficiaries rather than estranged family members. You are thus able to protect the most vulnerable of your family members and/or loved ones who are without critical income.
2. Provision for heirs with special needs
You may die when your beneficiaries are too young or immature to manage their inheritance. It is also a possibility that you may leave behind family members that are not able to manage their own personal affairs. In such instances, a will can provide for the assets of the estate to be placed in a trust and for the trustees of the said trust to manage the assets on behalf of the beneficiary/ies.
3. Wills indicate preferences and reduce family conflict
A will is used to indicate preference of the use of certain assets or distribution of assets to particular people. For instance, you could leave your antique car to your son or a particular property to your daughter.
4. Children’s guardians are named in Wills
Unless clearly provided in writing, in a will, the state will choose a child’s guardian upon the death of a parent if there is no surviving spouse/parent. It is therefore advantageous to ensure that you provide for your chosen guardians to be elected as the guardian of any minor children in your will.
5. Executors are elected by a Will
An executor is a person elected to have signing power over your estate and ensure that the estate is liquidated and distributed correctly, in terms of your wishes. It is crucial to provide for an executor that you trust to deal with your estate properly on death and assist with reducing conflict between family members.
The disadvantages of dying intestate
In the absence of a proper estate plan, managing the winding up of an estate can be a complicated and costly process. First, the deceased’s estate will be frozen until such time as the Master appoints an executor. The Master will appoint an executor from nominated representatives, which process can cause delays in finalising the estate.
After which, your estate will be divided among your remaining blood relatives in accordance with the laws of intestate succession, although this may not be what you intend. In the instance that you die without blood relatives, your estate will be forfeited to the state.
Critical considerations and valuable information when drafting a Will
In terms of section 4A(1) of the Wills Act 7 of 1953 (the Wills Act) any person who signs a will as a witness, or writes it, is disqualified from receiving a benefit from that will (with some exceptions). While the consequences of this section of the Wills Act is disruptive to the performance of the executor, it is a reality that these persons can be disqualified from inheriting in an estate regardless of the practical complications.
Moreover, section 2B of the Wills Act provides that if you die within three months of becoming divorced, your ex-spouse will be deemed to have predeceased you. However, if your ex-spouse is a beneficiary and you die after six months of becoming divorced without amending your will, it will be interpreted that you intend your ex-spouse to inherit from your will. This clause is problematic from a practical perspective as it creates a scenario in which an ex-spouse is deemed to inherit by omission of the deceased to amend his/her will after six months of becoming divorced, regardless of the reasoning for the omission. Furthermore, in instances where it is the intention of the testator that the ex-spouse inherits despite the divorce, the testator is deemed to have passed away intestate if the testator passes away within three months of a final decree of divorce.
The above are only two practical examples of legislative issues to consider when drafting wills and provide an illustration of the importance of having your will drafted by a professional. A necessity in putting your mind at ease during the estate planning process.
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