Death is a topic many of us prefer to avoid, but it’s an inevitable part of life. While we can’t control when or how we will pass away, we can certainly plan for it. One crucial aspect of end-of-life planning is having a valid will in place.
What is a valid will?
In South Africa, a valid will is a legally binding document that outlines how a person’s assets and possessions should be distributed after their death. For a will to be considered valid in South Africa, it must adhere to specific legal requirements, which are outlined in the Wills Act, 7 of 1953.
Key Aspects of a Valid Will
The person making a will also referred to as the testator, must be at least 16 years old and of sound mind at the time of creating the will.
The will must be in writing, whether handwritten, typed, or printed. Oral (verbal) wills are not recognized in South Africa.
The testator or someone else, in the testator’s presence and by their direction, must sign the will at the end of the document. If the testator is unable to sign, they can make a mark (e.g., an “X”), which must be witnessed. A Commissioner of Oaths must attach his certificate at the end of the Will which confirms that the mark made by the testator is that of the testator and that he has verified the identity of the testator.
The will must be signed in the presence of two competent witnesses who are at least 14 years old. The witnesses must also sign the will in the presence of the testator and each other.
The will should clearly express the testator’s intentions regarding the distribution of assets, the appointment of an executor, and any other wishes or conditions they want to impose.
The will typically appoints an executor, who is responsible for carrying out the testator’s wishes, collecting the assets, settling debts, and distributing the remainder according to the will’s instructions. The executor must be willing to take on this role.
The will should identify the heirs (individuals or entities) and specify what they are to receive from the estate.
The witnesses must attest that they witnessed the testator signing the will and that it appears to be the testator’s will. They should also sign the will in the presence of each other and the testator.
The will should be made voluntarily, without the testator being under duress or undue influence from others. If there are concerns of coercion, the validity of the will may be challenged in court.
Benefits of Having a Valid Will
The importance of having a valid will cannot be overstated, as it plays a critical role in ensuring your wishes are honoured and your loved ones are taken care of after your passing. Here are some key reasons why having a valid will is crucial:
Asset Distribution
A valid will allows you to specify how you want your assets, including property, savings, investments, and personal belongings, to be distributed among your chosen heirs. This ensures that your assets go to the people or organisations you care about most. Including Crest Trust as Executor of your will can ensure that your assets are managed and distributed correctly.
Control and Personal Choice
Creating a will gives you control over your estate even after your death. You can make specific bequests, name heirs and beneficiaries, and designate how various assets should be distributed. This control ensures that your wishes are respected.
Family Protection
For parents with minor children, a will is vital for naming guardians who will care for your children if both parents pass away. This provision ensures your children’s well-being and that they are placed under the care of individuals you trust.
Conflict Prevention
A well-drafted will helps prevent conflicts and disputes among your heirs and beneficiaries. Clear instructions in your will reduces the likelihood of disagreements and legal battles over inheritance, preserving family harmony.
Efficient Probate Process
When you have a valid will, the administration process (the legal procedure for administering your estate) tends to be more straightforward and efficient. This means that your heirs can access their inheritances more quickly, reducing financial stress during a difficult time.
Tax Efficiency
Proper estate planning through a will can minimize the tax liability of your estate. You can employ strategies to reduce estate taxes, allowing more of your assets to pass to your chosen beneficiaries.
Business Succession
If you own a business as a sole owner, a valid will is essential for outlining a succession plan. You can specify who should inherit or manage the business, ensuring its continuity and preventing disputes among heirs. Should you be a co-owner or co-shareholder of the business, you may want to consider a buy-and-sell agreement to regulate who will take over the business after the demise of one or more owners/shareholders.
Avoiding Intestacy Laws
Dying without a will means that your estate will be subject to intestacy laws, such as the Intestate Succession Act in South Africa. Intestacy laws may distribute your assets in ways you didn’t intend, potentially leaving out important individuals or organizations.
Peace of Mind
Creating a valid will provides peace of mind, knowing that your wishes will be followed and that your loved ones will be cared for. It relieves your family from making difficult decisions during a stressful time.
Problems Faced When Dying Without a Will
Dying without a will can lead to a range of problems and complications for your loved ones and your estate. Failing to have a valid will can lead to uncertainty, legal complications, and financial hardship for your heirs. Here are some of the key problems faced when dying without a will:
Intestate Succession Act
When you die without a will, the distribution of your assets is determined by the Intestate Succession Act. This Act provides a default framework for asset distribution, which may not align with your wishes. The outcome can vary significantly depending on your marital status and family structure. This Act does not account for unique circumstances or non-traditional family structures. As a result, close friends, unmarried partners, stepchildren, or charities you may have wanted to support might not receive anything from your estate.
Lack of Control
Dying intestate means you lose control over who receives your assets and how they are distributed. Your assets may go to family members or relatives whom you may not have intended to benefit. This lack of control can result in assets going to individuals you wouldn’t have chosen as beneficiaries.
Family Conflicts
The distribution of assets under the Law on Intestate Succession can lead to family disputes and conflicts. Family members may disagree about who should receive what, causing tension and legal battles that can strain relationships.
Delay in Asset Distribution
The administration process for estates without a will can be more complex and time-consuming. This means that your heirs may have to wait longer to access their inheritances, potentially causing financial difficulties for them.
No Guardianship Designation
For parents of minor children, not having a valid will means there is no designated guardian nominated to care for the children if both parents pass away. This can lead to uncertainty about the children’s future and potentially result in court-appointed guardianship arrangements.
Higher Estate Taxes and Legal Fees
Without proper estate planning, the estate may face higher tax liabilities, reducing the amount that beneficiaries ultimately receive. The absence of a will can result in a more complex administration process, potentially increasing legal fees and administrative costs for your estate.
Incomplete Financial Arrangements
A will can include instructions for managing your financial affairs, including closing bank accounts, settling debts, and addressing outstanding bills. Without a will, these details may be overlooked, leading to financial complications.
Uncertainty and Stress
Dying without a will can leave your loved ones in a state of uncertainty and stress during an already emotionally challenging time. They may struggle to navigate the legal and financial complexities of settling your estate.
Wills Week: Free Wills from the Legal Fraternity
Recognizing the importance of having a valid will, many legal fraternities organize events like “Wills Week.” During Wills Week, legal professionals typically offer to draft simple, standard wills free of charge for individuals who do not have one. It’s an excellent opportunity to start the process of estate planning at no cost.
However, it’s important to note that these free wills usually cover basic provisions and may not address more complex situations or specific requests. If you have unique circumstances, significant assets, or specific wishes that require detailed legal consideration, it’s advisable to consult an attorney or other fiduciary specialist for personalized advice and a professionally drafted will.
Now that you know the benefits of having a valid will and the dangers of dying without one, it is important that you start the process of creating a valid will. Emphasizing the significance of maintaining an up-to-date, professionally crafted will cannot be overstated. It revolves around safeguarding your loved ones and facilitating their transition after your passing. Keep in mind that the earlier you take this step, the better, as the timing of life’s inevitable uncertainties is unpredictable. Engage professionals at Crest Trust who will guide you on every step of crafting a standard Will to ensure that your belongings are properly managed even after you have passed on.