By Rozanne Heystek-Potgieter, Wills and Estate Planning
Death and how your estate will devolve as well as its implications for the loved ones you leave behind is more often than not, a much avoided topic, due to its presumed fate-tempting nature. It is imperative to discuss the consequences of not having a valid will and a matching concise estate planning strategy. Many successful and educated individuals do not have a will – one could only assume it is because they do not understand the repercussions of not having one.
- Who needs a will?
We are afforded the freedom and right of testation, the ability to decide exactly, within limits, how our assets shall devolve on our passing. If one does not have a will, or if a will is declared partially or completely invalid, then the division of ones deceased estate is governed by the Intestate Succession Act 81 of 1987, as amended. The division of an intestate deceased estate will depend on whether the deceased left behind a spouse (or spouses) as well as any dependents and/or ascendants. If you do not have a will, any inheritance due to a minor must be deposited in to the Guardian’s Fund, a government run fund that safeguards the inheritance of a minor until they have reached the age of majority (18). Having a will ensures that you decide how your estate is divided and above all you nominate an executor, the person who will be responsible for the winding up of your estate. Not having a will means the law will prescribe who will inherit your assets, how a minor’s inheritance will be dealt with and who will act as an executor. In short, if you have assets, you should have a will.
- Is your current will valid?
Some people decide to draft their own wills and feel at ease that their affairs are in order. More often than not, this couldn’t be further than the truth. The Wills Act 7 of 1953 prescribes certain formalities that have to be met for a will to be considered valid. These formalities relate to the capacity to act of the drafter, who can witness the attestation of a will and the discretionary powers of the Master of the High Court in declaring certain wills valid or invalid. In summary, a valid will must be in writing, a testator must be over the age of 16 and be capable of appreciating the nature of the effect of the act, the testator and witnesses must sign the will in the presence of each other and the testator, and the witnesses must be over the age of 14 and not receive any benefit in the will. If you have drafted your own will, it would be best to have a professional review it to ensure specific and necessary clauses have been included, such as: the revocation of all previous wills, the exclusion of collation, naming of a residuary heir and exempting the executor from providing security, to name a few.
To read the full article and our smart tips about wills visit the website http://www.brenthurstwealth.co.za