Even when assets are substantial, the absence of a valid Will or the presence of multiple conflicting Wills can leave families facing uncertainty, delays, and legal complexities.
A Will gives you control over how your estate is distributed. Having a valid Will is not just about protecting your assets; it’s about protecting the people you love and giving them clarity and certainty during a difficult time.
South Africans should not take having a Will for granted. Contrary to popular belief, anyone, regardless of their social or financial circumstances, should document their wishes to safeguard their assets and ensure those wishes are honoured after death.
Here are some things about having a Will you should know;
1. If you die without a Will, the law decides for you.
In South Africa, the Intestate Succession Act determines who inherits if you pass away without a Will. This means your assets are distributed according to a fixed formula, not necessarily in line with your wishes.
2. Children under 18 cannot inherit directly.
When it comes to minor children, however, you need more than a Will to ensure they are protected after your death. Assets left directly to a minor go into a fund administered by the state, unless you’ve set up a trust in your Will.
Having a Will is not enough to secure your minor children’s inheritance. To ensure that they do inherit from your estate, your Will needs to include a provision to set up a testamentary trust. A testamentary trust holds and manages assets on behalf of minor children according to the instructions of the deceased.
3. One of the most common mistakes when it comes to drawing up a Will is not signing it.
Your Will is not valid if it is not signed. To comply with the law, it must meet the formal requirements: it has to be in writing, signed by the testator (you) who is at least 16 years old and of sound mind, and witnessed by two people over the age of 14 who are also of sound mind, and are competent enough to give evidence in a Court of Law. The testator must sign the Will in the presence of the witnesses or confirm that the signature on the Will is theirs; otherwise, the document will not be recognised as valid.
4. Witnesses cannot benefit from your Will.
If someone signs as a witness, they can’t inherit from you. If they are listed as a beneficiary, their share is likely to be voided. Don’t sign as a witness if you are an heir or a legatee, if you are the executor, a trustee, or a guardian.
5. Contrary to popular belief, a verbal Will is not valid, but a handwritten one can be. Verbal Wills are not valid. Handwritten and downloaded Wills are valid as long as you meet the formal requirements. You sign it as well as two witnesses, everyone having a sound mind, and you have a valid Will.
6. Adopted children have the same rights as biological children.
Adopted children are treated equally in inheritance matters. However, foster children do not automatically qualify unless they’re specifically included in your Will.
7. Drawing money from a deceased bank account could cause legal problems.
When someone passes away, family members often access their bank account and withdraw all the available cash to cover unforeseen costs linked to the death. This is a risk as the bank account is an asset of the deceased’s estate. The only person who has the authority to access that account is technically the executor,” says Khan.
8. Your debts don’t disappear when you die.
Liabilities must be settled before any inheritance can be distributed. This is done using available cash or through the sale of assets to generate cash. The executor first pays off the debts and expenses of the estate. Only once those are cleared can heirs or legatees receive what’s left. If there aren’t enough assets, the estate is declared insolvent, but heirs don’t inherit the debt.
9. Life insurance and pension funds don’t automatically form part of your estate.
Life cover pays out to the nominated beneficiary, unless you name your estate as the beneficiary, in which case it can create liquidity to settle debts and expenses. Pension funds are distributed according to the Pension Funds Act to legal and factual dependents, not necessarily as per your Will.
10. It’s easier than ever before to draw up a Will.
Many financial advisers and banks offer free Will services.
* Khan is the senior legal specialist at Liberty.
PERSONAL FINANCE