We are all aware of the saying ‘nothing is certain except death and taxes’. Morbid as it might sound, it’s never a convenient time to start thinking about what will happen to your family or assets once you are no longer here. Drafting a Will, is something that everybody needs to prioritise at some stage and rather sooner than later, as we never know what the future holds.
“Property is the biggest asset you will ever own. Whether it’s new property you are purchasing and thinking of your first Will, or an addition to your property portfolio where your current Will just needs to be updated, having a Will is non-negotiable ”says Craig Hutchison, CEO Engel & Völkers Southern Africa.
Here are a few guidelines to compiling your last Will and Testament to make more understandable and a little less overwhelming:
The hierarchy of intestate succession Act is as follows:
Start out by drafting a Will. “It is best to contact a professional which may include your financial adviser, a Trust Company, an attorney etc. Many people tend to use a template Will which they may have obtained from the internet which only allows for information to be completed, however, these kind of Wills are not always in line with legislation and may leave your heirs with lots of challenges when the estate needs to be administered” Botha added.
Keep the following in mind:
Documentation that should be kept together with your Will
Spouses vs. Partners
“A will can costs anything from nothing, to overR10 000. At Fed Group, we charge R513 if we are appointed the estate’s executor. For an additional R1000+VAT, you can appoint anyone to be the executor” says Lynne Serfontein (CAIB) TEP, Fiduciary services consultant,Fed Group.
Charmaine Schwenn, Director, Tate, Nolan & Knight Attorneys advises that during his lifetime a testator may keep the original Will or entrust it’s custody to some other person or institution. It is important to keep the original Will in a safe place as the Master of the High Court who oversees the Executor will only accept an original Will complying with all the statutory formalities of drawing a Will. Most attorneys have a securities safe-keeping facility that is indexed and fire proof. It is best that the testator retains a copy and leave a copy with someone they trust with clear instructions as to where the original is located. The biggest difficulty that some encounter is that on the death the family cannot locate the Will.
Whenever there are any major changes in your life, your will should be top of mind. These include a marriage, the birth of a child, divorce, purchasing new property or the death of a beneficiary or executor. Your Will must be adapted to fit your circumstances. For example, when your children no longer are minors, you may no longer require the provisions that you had in place for guardians and trusts to administer their inheritance. It is important to update your will after a change in marital status, particularly after a divorce. If you do not change your will to prevent an ex-spouse from inheriting after a divorce, an ex-spouse is still entitled to inherit if the other spouse dies within three months of the divorce being finalised.
Executing a will could be a long and difficult process. It involves dealing with the Masters office, SARS, banks, the insurance, creditors and much more. Thatcher says the administration of the estate will be done by the executor nominated in the Will. If no executor was nominated in the will, the Master will appoint an executor to administer the estate. In South Africa, there isn’t a formal “reading” process – once a person dies the Will becomes a public document.
Botha notes that this depends on the complexity of the estate. Any delays being experienced, the existence of any possible litigation matters, possible maintenance claims, possible existence of children out of wedlock etc. may cause a delay during the estate administration process. A simple estate can be administered between 6 and 12 months, however, each estate can only be assessed by considering all the merits concerning the estate before establishing a time frame.
Death is inevitable so it’s your responsibility to set aside a few hours to take care of this very important document. Most people will avoid this as they find it very intimidating and don’t really know where or how to start. There is no better time than the present to draw up your Will. “At least you will have peace of mind that should anything un fore seen occur, your property will be distributed in terms of your wishes” Hutchison concluded.