estate planning and wills
What is a Will?
A last will or testament is a legal document that regulates what happens to a person’s estate (assets and liabilities) after his or her death.
Why should I have a Will?
You need a will to indicate who your beneficiaries and the executor of your estate should be after you have passed away. It will also place you in a position to appoint a guardian of your choice to take care of your children if they are minors when you pass away.
What happens to your assets if you die without a Will?
If you die without a Will, your estate will be distributed in terms of the law of intestate succession. This may include beneficiaries whom you may not have wished to benefit or may exclude persons whom you would have preferred to benefit.
The Master of the High Court will appoint a curator to take care of or administer the property of your minor children and their inheritance will go to the Guardian’s Fund. A guardian, whom may be different from the person you would have not preferred to care for your children, may be appointed by the court for that purpose.
When a person dies intestate, the Master appoints an executor of the estate. This may not be a person you know or trust.
Who can draw up my Will for me?
It is important to have a person with the necessary knowledge and expertise to draw up a Will. The Will must represent the true intentions of the Testator and meet certain legal requirements for it to be valid. Attorneys understand the legal formalities that are required for a valid Will, for example:
- The Will must be signed and dated in the presence of two witnesses.
- Both witnesses must be of the age of 14 or above and be competent to give evidence in a court of law.
- A beneficiary in the Will must not be involved in the drawing up or attesting to a Will as a witness.
- A person who attests and signs a Will as a witness or who is involved in the drafting of a Will is disqualified from benefitting under the Will.
Which documents do you need when drawing up a Will?
The following documents are required to draw up a Will:
- The name and identification details of the executor of your estate.
- The name and ID number of your spouse and how you are married (in community of property, out of community of property, etc.)
- A copy of your marriage certificate or a copy of your divorce order and settlement agreement.
- The full names and ID numbers of all your children (including adopted and stepchildren) you wish to benefit from your Will.
- The full names and ID numbers of any grandchildren you would like included.
- The name and contact details of a guardian if you have minor children.
- Details of the assets you wish to be donated to institutions such as a church, hospice, orphanage, etc.
- Details of any other party or institution you wish to benefit.
- Copies of title deeds in respect of immovable properties in South Africa or mortgage bonds thereof.
- Copies of insurance policies, such as endowment policies, life policies, credit life policies, etc.
- An inventory (list) of all liabilities.
Are there any conditions that could be set in a Will?
Wills can be used to direct when and how the bequests should pass to the beneficiaries. You can arrange that your children be given control of their assets at stages of their lives. For example, the first one-third of their inheritance becomes available at the age of 21 with the remainder at the age of 25 years or even later. You can achieve these goals by setting up a trust in your Will (called a testamentary trust) which will be formed upon your death. You will need to provide the name of the trust, the full particulars of the trustee and the terms of the trust. You can include any conditions in your Will so long as they are not illegal or contrary to the good morals of society.
What is the purpose of a trust?
A trust is used to protect the interests of your dependants while they are unable to do so themselves. An attorney can assist you to set up a trust. A trust can own property, receive donations and inherit money from your estate when you die. What makes a trust so secure is due to the fact that its decisions are taken by the trustees whom you appoint when you create the trust. The beneficiaries can only claim their benefit at the age or time provided in the Will.
Types of trusts
The two types of trusts are:
- An inter vivos trust (a trust between the living or a group of people) for the benefit of selected beneficiaries.
- A testamentary trust (stipulation/provision in a will) for the benefit of the testator’s heirs.
Legal requirements for a valid trust
There are processes and strict requirements involved with creating and managing a trust and trustees. We can guide you and/or your appointed trustees to ensure matters are handled in terms of prevailing best practice.