A question that is often asked of attorneys is: “Why do I need a Will?” The answer is simple. Without a Will, the winding up of your Estate is likely to give your family more headaches than they would like to have when you die.
A Will is a very important document as it ensures the smooth winding up of your Estate on your death and clearly determines how your Estate should be divided up amongst your heirs, as it provides directives to your Executor on how you would like your Estate to be distributed.
As most people generally want their Estate to benefit their direct family, the simplest structure is for the first-dying spouse to direct that his or her Estate should pass to the survivor. This will ensure that the survivor is not left destitute and the deceased’s Estate will benefit the family by ensuring that the assets are retained within the family unit and not distributed in a fashion that will place unnecessary hardship on the survivor and any minor children.
The survivor would generally then execute a Will directing that his or her Estate should pass to their children on the survivor’s death. This ensures that the Estates of both the first-dying and the survivor ultimately benefit their children.
The danger of not having a valid Will
If you do not have a valid Will, the distribution of your Estate will be determined by the laws of intestacy. If you are survived by a spouse and have children, your spouse will inherit what is known as a “child’s share” of your Estate, or R250 000.00, whichever is the greater. By way of example, if your Estate has a value of R1 million and you leave a spouse and three children, your spouse and each of your children will inherit R250 000.00. If your children are minors at the time of your death, their inheritance must be paid into the Guardians Fund until they reach the age of majority. The result will be that the lion’s share of your Estate may end up being held by the Guardians Fund and will not be available to assist your dependants immediately on your death. If, on the other hand you had executed a Will and appointed your surviving spouse as sole heir, your entire Estate will be to the immediate benefit of your family.
The importance of an Executor
A Will has the added advantage of allowing you to appoint someone you can trust as the Executor of your Estate and direct that your Executor need not provide security to the Master of the High Court for carrying out his duties. If you do not have a Will, the Master of the High Court will call for nominations from family members for the appointment of an Executor who will, in most cases, be a family member. In such instances the Master will often require the appointee to lodge a bond of security to cover the entire value of your Estate and may also insist that the appointee appoint an attorney as his or her agent in order to ensure that the Estate is administered according to the legal requirements. A bond of security may take an unnecessarily long time to secure and may involve additional expense that could easily be avoided.
In order to be valid, a Will must be properly executed and it is recommended that you obtain the correct advice about how to prepare and execute a Will, as an invalid Will may be rejected by the Master of the High Court, with the result that all the effort you have put into setting out your wishes for the distribution of your Estate will have come to nothing.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)