Below you will find our answers to the most frequently asked Will questions we receive.
A Will is a legal document which comes into effect when you die. Your Will explains how and to whom you want your estate to be distributed. Your estate includes everything that you own at the time of your death.
In your Will you can select who will inherit your property, you can choose who shall be the guardians of your children and specify who will be in charge of your estate administration. Having a Will gives you control over your estate rather than letting legislation rule over your affairs after you die. You can stipulate that money be held in a trust for minor children where it can be more easily accessed by your chosen guardians for maintenance and educational needs or for moneys to be held in the State Guardians Fund to be held until whatever age you stipulate.
If you don’t have a Will, your assets may not be left to the person of your choice. It can take a long time to have an executor appointed. The executor who is appointed may be somebody you would not have chosen yourself. Having a Will drawn up isn’t difficult or expensive but not doing so can cause unnecessary strife and stress for family and loved ones during a very difficult time.
Any person 16 years and older can have a Will drawn up provided that person is mentally equipped to understand the impact of his or her actions. A witness to a Will must be at 14 years or older.
A testator can sign a Will by means of a mark, e.g. a thumbprint or making of a cross. Someone else may also sign on their behalf. In both cases, whether they make a mark or someone else signs on their behalf, it must be done in the presence of two or more competent witnesses and a commissioner of oaths, all of which to be present at the same time. You can find a commissioner of oaths at your local police station.
The Will must contain a certificate by the commissioner of oaths, that he/she is satisfied as to the identity of the testator and that this is the Will of the testator. The certificate must be signed by the commissioner. Each page of the Will must also be signed by the commissioner. A witness to a Will may not sign by means of a mark.
Witnesses must be 14 years of age or older, mentally competent and cannot be beneficiaries to your estate. If someone stands to benefit from your Will, they cannot sign as a witness. Work colleagues or friends who are not nominated in the Will are ideal, as they can usually be found and called upon in the unlikely case of a dispute.
It is generally advisable to nominate your spouse or a close relative as an executor. It gives them the freedom to compare and choose the most suitable financial or legal assistance in administering the estate and the ability to negotiate a rate. In cases where one anticipates that there is likely to be conflict among beneficiaries it is advisable to have an independent executor.
If the executor you nominated dies before you, the Master will consider nominations in writing from your family. He may even convene a meeting to discuss an executor. All this will delay the settlement of your estate. To avoid this, you can nominate a second person to stand in as the executor should there be any reason why your nominated executor cannot carry out the task.
If you die without a valid Will your estate will devolve according to the rules of Intestate Succession. See more about Intestate Succession.
Generally, the surviving parent is automatically the child’s guardian. If one has minor children (under the age of 18 years), one should appoint someone to act as a substitute guardian in the event of the surviving parent dying. Special care must be taken in cases where testators are divorced and a final court order exists in respect of minors which will override guardianship.
Things to consider when nominating a guardian. If you are worried because your first choice is older than you are, focus on who would be the best choice to take care of your children for the next few years, knowing that you can change your choice as your children and their nominated guardians grow older. You can review your choice again every few years and update your Will accordingly. If members of your family are unhappy about your choice, your first loyalty is to your children. You should make the choices that you think will serve your children best. Be sure to discuss your choice with your chosen guardian. To help alleviate conflict about your selection of guardianship you can leave a written explanation of your choices.
Yes, it is okay, but it is always preferable to give full names and even ID numbers of all your beneficiaries to be absolutely certain that there is no confusion. If you stipulate “my children” as beneficiaries, without giving specific names this will include all of your children, i.e. children of your current marriage, your previous marriage, adopted children and illegitimate children.
Insurance policies where the insured person has nominated a beneficiary, will not devolve in terms of the provisions of the Will. The policy will go to the person nominated in the policy and bypass the estate entirely, except for estate duty calculations.
People sometimes think that they can revoke beneficiaries nominated in a life assurance policy by simply nominating other beneficiaries in their Will, this is not the case. The life assurer has a contractual relationship with you, and will pay out the benefits to the beneficiaries nominated in your assurance contract regardless of whether your Will states otherwise. If you want to change the beneficiaries of your policy, you should do this directly with your life assurance company.
If your original Will cannot be found, a High Court order will have to be obtained before the Master of the Court can accept a copy of your Will. This will lead to additional costs and delays in finalising your estate.
You need to tell someone close to you where your Will is kept, so that when you die, your family can find your original Will. Alternatively, you can print several copies of your Will signed by yourself and your witnesses. Each copy will be considered an original because it bears original signatures. You can then arrange for yourself, your financial planner, your executor and a family friend to each keep a copy.
One of the requirements of a valid Will is that it contains the date. All previous Wills are revoked by the Will containing the most recent date. Your last Will with the most recent date is the one that will come into effect. Still, it is a good idea to destroy previous Wills when you update your Will to avoid any confusion or fraud.
We suggest that unless your circumstances are absolutely simple and straightforward, you should seek legal assistance with your Will and reputable financial advice for most efficient and tax effective estate planning. For example, if you have minor children (under 18 years) and would like to nominate guardians, and either have them manage money on behalf of your child, or have the money kept in a trust until majority age. If this is not properly set up, any bequests made to minors may be paid into the Guardians Fund and kept under control of the fund until children are majors. If you have assets overseas, sometimes these are best dealt with in separate Wills because legal terms in Wills can differ in other countries. These would be the kind of circumstances in which we feel it would be wise to seek professional advice rather than using our template provided. Getting professional advice and having your Will drawn up by an attorney is inexpensive and highly recommended.
According to the Wills Act, if you die within 3 months of the divorce, a bequest to your divorced spouse will be deemed revoked. This allows a divorced person a period of three months to amend his/her Will after the trauma of divorce. If one fails to amend one’s Will within three months after the divorce, the deemed revocation will fall away, and your divorced spouse will benefit as indicated in the Will.
You cannot alter an existing Will by deleting portions with correction fluid or crossing bits out or adding other words or sentences or attaching other sheets of paper which do not comply with the requirements laid out for a valid Will. It is far better to prepare a new Will altogether and destroy the old one. If you have minor changes and would rather keep your original Will and add these changes, this can be done with a codicil.
A codicil is an addition made to supplement or amend an existing Will. A codicil must comply with the same requirements as a Will in order to be valid. A codicil do not need to be signed by the same witnesses who signed the original Will.
A legacy is a specified amount of money or property that is left to someone in a Will. The person appointed to inherit a specific asset or a particular sum of money is called a legatee. The residue of the estate, the portion left after debts and legacies have been paid out is inherited by heirs. All who benefit from a deceased estate are known as beneficiaries.
No, inheritance will only be valid in terms of a Will, or according to Intestate Succession or Customary Law where there is no valid Will.
Even if you have a large estate, you should keep your estate plan as simple as possible so that it is easy to execute. Nominate people using full names and the description of your relationship to avoid any confusion, especially if you have members of the family with similar names. Be absolutely clear in your description of items named in your Will, and once again, keep it simple. If you are in any doubt, seek professional assistance.
If you are living outside of South Africa, once you have filled in our Will template, please get your Will checked by your local authorities after completing it. That is the only way to ensure that it is compliant and valid in your country.
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Ashes to ashes, dust to dust, all come from earth, and to earth all return.
Ashes to ashes,
dust to dust,
all come from earth,
and to earth all return.