By Hannah Mower
The thought of departing from this earth, let alone planning its consequences, can be uncomfortable and an overwhelming exercise. As a result of this, many people are reluctant to conclude a will and overlook the importance of planning for loved ones when they are gone.
This is evident from the Master of the High Court, whose offices are responsible for the administration of deceased estates, has stated that a large number of reported estates are not governed by a valid will.
This can be avoided with proper and professional estate planning, which includes the drafting of a valid will.
What is a will and why is it important:
A will is a legal document that records and outlines how an individual wishes their estate to be distributed after their death/departure.
A will is of utmost importance and a tool in planning our estate by protecting the interests of our family members/loved ones, especially the best interest of the minor children.
Benefits of concluding a will include:
- Legal certainty and peace of mind;
- Protection of the minor children’s best interest:
- Nomination of a trustworthy and reliable Executor;
- Avoidance of delays and expenses in the administration department;
- Prevention of family feuds;
What happens if you pass on without leaving a valid will:
The challenges that may be encountered in the absence of a valid will:
- Identification of heirs:
In accordance with the Intestate Succession Act 81 of 1987. The law will determine who your heirs are and in what proportion each heir will inherit from the estate.
- Beneficiaries who are minor children:
In the absence of other recorded instructions, inheritance due to a minor child is payable into the Guardian’s Fund, and will be held until the minor child reaches the age of majority. The Guardian’s Fund is administered by the Master of the High Court.
- Nomination of an Executor:
An Executor is the person who handles your affairs upon your passing.
Should you pass away without a valid will, your intention will be unknown and cannot be honoured. Your children will be required to come to an agreement and nominate an Executor of your estate. This often leads to disputes between the heirs, distrust as well as significant time delays in the administration process.
- Bond of Security may have to be furnished to the Master of the High Court:
In the event that an Executor is nominated who is not a parent, spouse or child, he/she will be required to furnish the Master of the High Court with a Bond of Security equivalent to the value of the assets in the estate, before the Master will appoint them as the Executor. It is important to note that obtaining a Bond of Security can be a lengthy and onerous process, resulting in time delays in the administration process.
Your intention can be honoured if the above is reduced to writing in your will. This means that upon your passing, the Master of the High Court will be required to appoint an Executor of your choice as to your estate without requiring a Bond of Security.
The legal requirements for a valid will:
It must be in writing. In addition, the Wills Act 7 of 1953 specifically requires you to sign each page of your will, in the presence of two witnesses, who in turn must also sign your will.
Once signed, it is imperative that the same be stored in a safe place.
The original will must be submitted to the Master of the High Court, in order for the Master to ensure that your estate is administered in accordance therewith upon your passing.
Should the original be misplaced or inadvertently destroyed, your estate will devolve intestate, as explained above.
Amending and updating your will:
It is reassuring to know that you can amend your will at any time before your death, provided that you possess the necessary mental capacity to do so. It is advisable to review your will on an annual basis and to update it as and when your circumstances change, which may include inter alia: a change in marital status, the birth of children, and the acquisition of larger assets such as immovable property.
Contact our friendly staff to review or draft your will today and leave your family with peace of mind knowing that they are your utmost priority.
