“A man who dies without a will has lawyers for his heirs” (Anon)
While few of us want to make plans for our own mortality, a recent newsletter from Attorneys Valentine and Associates highlights how important it is to have a professionally-drawn will, especially to ensure the financial wellbeing of your spouse and/or dependents.
A professionally-drawn will is essential so that you can decide how your assets are dealt with and who the executor of your estate will be. This also reduces the risk of grieving family having to deal with uncertainty, bitter infighting and expensive litigation.
What happens if you don’t leave a valid will?
If you leave no valid will when you die, the “law of intestacy” applies, with the following consequences:
Your assets would be distributed according to law, not your wishes which could leave family or loved ones vulnerable;
Your deceased estate would be administered by an executor, appointed instead of you having chosen someone who you can trust to act with integrity and speed;
You will no say in who is to be appointed guardian of your minor children, nor trustee of a trust to protect their inheritances (particularly important if you are the last-surviving parent); and
Your childrens’ inheritances will sit in the statutory Guardians Fund until they turn 18, not desirable given past allegations of fraud, corruption and chaotic administration in the Fund.
Who gets what without a will?
The myth that the state will grab all your worldly wealth if you die intestate is not true, except where you leave absolutely no blood relations behind.
If survived by at least one relative, your net assets (everything you own, less your debts and the costs of winding up your estate) are divided up between your heirs in an order of preference: (a) dictated by law, and (b) dependent on how you are related to your heirs.
If survived by spouse and/or your descendants (children, grandchildren etc.) - they inherit everything according to set rules. Regardless of whether your spouse survives you together with children (or other descendants), he/she will, regardless of age or circumstances, inherit only the greater of R250,000 or a “child’s share”. Your spouse has to split your estate with your descendants which could result in financial hardship. Be sure to consider any vulnerable or special needs descendants as well.
If you leave neither spouse nor descendants – your parents, brothers/sisters and other relations all potentially have a claim. Visit the DOJ (Department of Justice and Constitutional Development) for a full breakdown and useful practical examples as well as aspects such as polygamous marriages, marriages in community of property, adopted and illegitimate children.
Charitable bequests
A will is not just essential to your family’s future, but you could benefit a favourite good cause with a bequest. Most of the worthy charities rely heavily on bequests, and you will leave the world a better place for your generosity. There are also tax benefits, and your heirs could benefit from substantial estate duty and capital gains tax breaks.
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