After the passing of a loved one, the last thing anyone wants to deal with are the logistics of handling an estate, especially if the deceased has not left behind a will with clear instructions.
You may be inspired to draw up a will by a recent birthday reminding you of the passing of time, acquiring new wealth, becoming a parent, or even going through a divorce. Whatever life-changing event makes you consider drafting a will, the truth is that there is no better time than the present.
As important as it is, estate planning can be a tricky and daunting endeavour. We aim to make the process easier by breaking it down. From how to fulfil your wishes to making sure your beneficiaries are compensated accordingly – a will grants peace of mind because it insures that chosen heirs and dependants are taken care of.
The time after the death of a family member should be one of mourning and healing. Allow Mbebe & Associates deal with the rest.
Reasons to draw up a will
If you were to passes away without a valid will, the estate will be wound up to the laws of Intestate Succession in terms of the Intestate Succession Act, 81 of 1987. It stipulates how assets are distributed and may not necessarily be in accordance with your wishes as the deceased.
If you are not legally married, your partner will not be viewed as a beneficiary by the law of intestate. So-called “common-law” marriages are not recognised as legitimate, and the only way to ensure that a partner is protected, is to have it clearly stipulated in a working will.
In the event you were to pass away while still being the parent of minor dependents, a will ensures that the legal guardian of your choosing will be left in charge. This will be an adult that you trust and have chosen yourself, instead of a state appointed guardian. You know your child best and being able to control who raises them when you are gone protects both the child’s emotional and financial wellbeing. You can also consider making a provision for the protection of minor heirs by setting up and testamentary trust.
While you are still alive, you will need to pick an executor to administer your estate according to the provisions of your will. The executor will be expected to act in the best interests of your heirs and respect the wishes of your will. This should be someone you trust, whether a family member, close friend or a legal professional. If one has not been named, the Master or your heirs may nominate an executor to administer your estate.
What you should consider when drawing up or amending your will
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Seeking expert and professional counsel when drafting or reviewing a will is in your best interest. Wills are intricate and legally binding documents. Drafting one without a full understanding of the law can either render it invalid or cause consequences after your death that may not be what you intended.
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Remember to revise and update your will after any major life event (marriage, home purchase, death of a named heir etc.) or every three to five years.
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Make sure beneficiaries are clearly named by using full names, their relationship to you and identity number. Ambiguity breeds confusion and this is best avoided.
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Should a legacy (a specific asset to specific heir) be bequeathed, describe is clearly.
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Do not hesitate to sit down with your lawyer and make sure you understand every part of your will. This is the only way to know if your wishes have been accurately reflected.
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In case the unexpected happens, include an alternate heir. If you fail to do so, intestate heirs will inherit your estate.
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Anyone who has been named in the will, no matter how insignificant their part may seem, should be notified. Advise them who has been nominated as your executor, so they know who to notify upon your passing.
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Consider where you keep your physical will (Mbebe & Associates can hold the original document for you for a nominal annual fee).
