According to an article on Fin24, only about 10% of South Africans have a will. This seems like risky behaviour when the cost of drafting a will is the same amount you might spend on a gift for someone or a night out on the town. But in fact, a proper will could be the most important gift you ever give your loved ones besides having things like Life Insurance and Funeral Cover policies in place, so that they’re looked after when you’re gone. A will is a way of protecting your legacy and ensuring that after you pass away, your belongings and money are distributed as you want them to be.
In this article, we look at how important a will is for peace of mind, plus how you can go about drafting one.
Why you should draft a will
According to Anye Jansen Van Rensburg, an associate attorney at SchoemanLaw Inc, a will is very important for various reasons, the most important being that the person who draws up a will gets to dictate who gets what when they pass on. This is known as estate planning. There are formalities to estate planning in order to prevent fraud and this is why leaving written instructions is often not enough. “Drawing up a will also allows you to take the burden off your loved ones, because you appoint a formal executor that will deal with all your assets and liabilities when you pass on, relieving the tremendous stress and tension on your family,” says Anye.
What happens if I don’t draw up a will?
If you don’t draw up a will and then pass away, the Master of the High Court will essentially “take charge” of your estate. This will mean that you won’t get to decide who inherits what, or who is in charge of administering your estate. The process is complicated and there are a number of rules that apply, which you can read more about here.
When should I draw up a will?
Unlike things like Life Insurance and Funeral Cover policies, you don’t have to be over 18 to draw up a will to determine what happens to your belongings when you pass away. Brittany Badham-Thornhill, associate attorney at Fairbridges Wertheim Becker Attorneys says that according to South African law, in terms of Section 4 of the Wills Act 7 of 1953, you only need to be 16 years or older to make a will, unless you are mentally incapable of appreciating the nature and effect of entering into a will.
Badham-Thornhill also recommends that you review your will after any life changing event, given the implications this may have on your estate, for example, getting married, purchasing a house or other asset, having a child, experiencing a death in the family, or inheriting. In particular, Badham-Thornhill says that having a child will impact how your estate is managed, because of the strict rules in place to ensure that children are cared for in your absence. “A will can simplify this process and ensure that your child is looked after immediately, without having to overcome any administrative barriers first,” she says.
Updating your will may also be necessary from time to time. June Theron, from Smith Tabata Buchanan Boyes, says that depending on the changes required this might necessitate a further will being prepared. “Alternatively, if it is only a minor alteration this can be done by having a document known as a codicil prepared, to amend the original will,” she says.
How do you draft a will?
“Getting a will drawn up seems like a lot of work – can’t I just scribble my wishes on the back of a piece of scrap paper and store it in my desk?” These thoughts may be tempting but banish them quickly from your mind. Theron says that many people decide to prepare their own wills, either by buying a blank will form from a stationer or simply by writing out their wishes in what they think is an acceptable manner. “Unfortunately such wills are often invalid because they don’t comply with the prescribed legal formalities,” she says.
You also then run the risk of having a will that is unclear, contradictory and simply not possible to implement. “There is no doubt that it is advisable to have your will drawn up by a professional such as an attorney. The cost involved will vary depending on which attorney you choose to assist you but it is definitely a worthwhile investment,” says Theron.
What must my will include?
Theron says that in your will you must name the people who will inherit your estate after your death. “In South Africa you are totally free to choose who will benefit; it is entirely possible to disinherit family members should you so wish. However, your spouse and minor children could, if disinherited, lodge a claim for financial support against your estate,” she says.
You can also choose who you wish to carry out the instructions of your will. This person is called the executor. This could be a family member or members, a professional person or a combination of both. Theron says that you can also include specific directions regarding your funeral, cremation or burial, organ donation and similar issues in your will. “The Wills Act states the requirements which must be met for a will to be valid and your professional will ensure that these are complied with,” she says.
Where must I keep my will?
Once you have completed and signed your will it has to be kept in a safe place – so no sticking it under the mattress or keeping it between your recipe books. “Quite often the professional involved may offer to hold it in safe custody which is a good option, in which case you should be given a copy and a letter confirming that the professional has the original in his possession,” ends Theron.
Do I still need Life Insurance then?
Along with a will, Life Insurance offers peace of mind if you have dependants. So says Yoni Balkind, attorney and founder of Go Legal. “The financial implications of early death can be a huge inconvenience to your family for years. Should you or your spouse pass away prematurely, it not only leaves the surviving spouse with the burden of financially supporting your dependants, but also increases the caretaking responsibilities on the surviving spouse,” says Yoni.
How can a Life Insurance policy be used to settle any claims or liabilities after someone dies?
You’ve heard about the delays in winding up an estate, particularly in cases where there is no will. But did you know that these delays increase when there is insufficient cash in the estate? This may mean that your loved ones can’t access your bank account, which could cause financial and emotional stress as you wait for the Master of the High Court or executor to deal with these problems.
A Life Insurance policy is one way of combatting these problem, says Yvonne Boden from Garlicke & Bousfield Inc. “The processing of an insurance claim is usually quicker than the finalisation of the estate. This cash payout from an insurance claim could assist the beneficiary in keeping an asset which otherwise may have had to be sold to cover outstanding debts, for example. A Life Insurance policy could also provide the beneficiary with funds independent of the estate so they can survive on a daily basis and maintain their standard of living.”
Life is unpredictable, and a will can ensure that your estate, no matter what size it is, can be administered in a proper and efficient manner, without the stress generally associated with this ordeal. If you want to preserve your legacy in the best way possible, having a proper will drawn up and kept in a safe place is vital. Another way to reduce the stress your loved ones experience after your death, is by having adequate Funeral Cover to cover your funeral expenses.