Written by: Eugene van der Walt | Afrikaanse weergawe
Most people know they should have a will. Far fewer actually have one. September is National Wills Week, which makes this the perfect moment to deal with something almost everyone puts off. A will is not only for the wealthy or the elderly. If you own anything at all, or if anyone depends on you, you need one.
What a Will Actually Does
A will is a legal document that sets out how your assets are to be distributed after your death. It allows you to name the people who will inherit from you, to appoint an executor to wind up your estate, and, critically, to nominate a guardian for your minor children. A properly drafted will gives you control over what happens to everything you have worked for, and it spares your loved ones enormous stress at the worst possible time.
What Happens If You Die Without a Will
If you die without a valid will, you are said to die intestate. Your estate is then distributed according to a fixed formula set out in the Intestate Succession Act. This formula does not know your wishes, your relationships or your intentions. It simply applies a rigid order of inheritance.
The consequences are often not what people would have chosen:
- Your assets are divided among your spouse and children according to a set formula, regardless of what you would have wanted or what your family actually needs.
- If you are unmarried and have no children, your parents, siblings or more distant relatives inherit, even if you were estranged from them or would have preferred to leave something to a partner or friend.
- A life partner to whom you are not legally married may receive nothing at all under the intestate formula.
- The court, rather than you, effectively decides who administers your estate, and it may not be the person you would have trusted.
Perhaps most importantly, dying without a will means you have not nominated a guardian for your minor children. That decision is then left to the court.
The Cost of Not Having a Will
An intestate estate is almost always slower, more expensive and more stressful to wind up than one governed by a clear will. Family disputes are far more common where there is no will to give direction. Money that could have gone to your loved ones is instead consumed by delay, uncertainty and sometimes litigation between the very people you would have wanted to protect.
What Makes a Will Valid
For a will to be valid in South Africa it must meet certain formal requirements. It must be in writing, it must be signed by you in the presence of two competent witnesses, and those witnesses must sign in your presence and in the presence of each other. Small mistakes in signing or witnessing are one of the most common reasons wills are challenged or rejected, which is why professional drafting matters.
Wills Week Is the Time to Act
During National Wills Week many attorneys assist members of the public with a basic will. It is the ideal opportunity to finally cross this off your list. A will is not a document about death so much as it is an act of care for the people you leave behind. Reviewing it every few years, and after any major life event such as a marriage, divorce, birth or significant purchase, keeps it current and effective.
Van Der Walt & Associates assists clients with wills, estate planning and the administration of deceased estates. Contact us for an initial consultation.
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This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.