WHERE THERE IS A WILL, THERE IS A WAY – PART 1

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The thought and talk of death can be very uncomfortable and this can discourage most people from taking the important step of drafting a Will, but having a Will is not only the responsible thing to do but it can be one of the most important decisions you take in your life – for  yourself and for your family.

A will is a written document in which a person, called the testator, voluntarily stipulates how his or her estate will be distributed after her or his death, and who will take care of her or his minor child(ren).

ADVANTAGES OF HAVING A WILL

If you die and you leave a Will, you are said to die “testate”.

Having a valid Will in place, at the time of your death, will ensure that your assets are disposed of and distributed according to your wishes. This is called “freedom of testation”. This minimizes the likelihood of tension between your loved ones and can help protect your (minor) child(ren). You can stipulate who should be the guardian of your minor children in the event of your death.

If you have made provision for a testamentary trust in your Will this will come into effect upon your death. Your assets will vest in this trust for the benefit of a chosen beneficiary and will accrue to that beneficiary at a specified time, for example, when a minor child reaches the age of 21.

DISADVANTAGES OF NOT HAVING A WILL

If you die without a Will you are said to die “intestate” and this means that your estate will be distributed according to the laws of intestate succession. The disadvantage is that, because your wishes are unknown, everything you have worked hard for may end up being distributed to the people you would not have ordinarily intended to benefit from your estate.

It is important to note that, according to the laws of intestate succession, parents and siblings are not close in line to inherit but rather a surviving spouse followed by children. If it is your wish to leave something behind to your extended family, you should draft a Will.

What if you are in a long-term relationship with someone and you wish for that person to inherit?

Draft a Will. Cohabitation is when an unmarried couple lives together in a long-term relationship that resembles a marriage. This type of relationship does not receive the same protection as a marriage. This means that if a partner in a cohabitation relationship dies without leaving a Will, her or his surviving partner will not be recognised as a spouse and will not be able to inherit from the deceased’s estate under intestate law.

THE DISTRIBUTION OF YOUR ASSETS IF YOU DIE WITHOUT A WILL  

This is done in terms of the Intestate Succession Act 81 of 1987.

If you are survived by a spouse and no children, then your spouse will inherit your entire estate.

If you are survived by your child(ren) and no spouse, your estate will be divided equally amongst child(ren).

If you are survived by a spouse(s), with whom you are married OUT OF COMMUNITY OF PROPERTY, and Child(ren), the spouse will inherit R250 000 or a child’s share whichever is the higher amount. This means that if, for example, you are survived by a spouse and two children and your total estate is R250 000 or less, your spouse is entitled to the entire estate and your children will not inherit.

Should your estate be worth i.e. R650 000, the spouse will inherit R250 000 and the children R200 000 each.

HOWEVER, If you are survived by a spouse(s), with whom you are married IN OF COMMUNITY OF PROPERTY, and Child(ren), The spouse will first receive half of the estate by virtue of the marriage being in community and then share with the children the deceased’s remaining half.

For example, if the estate is worth R800 000 and you leave behind a spouse and two children. The spouse will receive her or his half share (by virtue of the marriage in community of property) before distribution can occur. Therefore, she or he will first receive R400 000. She or he will also get R250 000 of the remaining R400 000 and the children will then share the remaining R150 000.

Where there are no wives or descendants, the parents will inherit, and in their absence the brothers and sisters will inherit.

The law does not prevent an individual from drawing up her own Will, however it is a good idea to consult a lawyer because there are legal formalities which must be complied with for a Will to be valid. A poorly drafted Will may be difficult to execute, and this can cause tension between the beneficiaries.

With Wills Week coming up in September (in South Africa), it would be a great idea to consult with an attorney get your Will drafted for FREE.

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