Why is it important to make a will?

Sorting out your will can give you peace of mind. With a valid up-to-date will, you can be sure that when you die, you have done what you can to ensure your heirs and dependants have the least problems dealing with your worldly possessions.

A will is a legal document that gives directions on what should happen to any money, investments, property and other valuables that you leave behind when you die.

Why make a will?

To ensure the right people inherit

You may wonder why it is necessary to state in a will that your family should have your possessions when you die – surely it is obvious?

South Africa has a law – the Intestate Succession Act - that deals with who should get your possessions if you die without making a will. While it does ensure family members inherit, it may not include a life partner or children who live with you, but are not your own. In addition, the exact way in which family members inherit may not always be how you want it to be. Read: Who will inherit your possessions if you die without a will?

For example, your parents may inherit, when you want to leave the money only to your children. Or your siblings or half-siblings may inherit when you would prefer one sibling to get a greater share of what you leave behind.

If you wish to leave certain assets to someone, you can record this in your will. You can also leave possessions, such as works of art, jewelry, a special collection, or furniture, to your children and then write a letter of wishes accompanying your will to stipulate which child should inherit which item. A letter of wishes is easier to update.

If you want to bequeath money to a charity, you can also record this in your will.

The care of your children

If you have children who are minors - under the age of 18 - a will enables you to specify a legal guardian who is tasked with looking after your children.

If you die without a will, the other parent of your child, or children, will be the sole guardian.

However, if you do not have a will and you and your spouse die simultaneously in, for example, a car accident, or if the other parent is no longer alive, the High Court will appoint a guardian for your children.

You should also be aware that minor children cannot inherit cash or investments from your estate.

The Administration of Estates Act stipulates that cash left to a minor should be paid into the Guardian’s Fund.

If you die without a will, any cash or investments due to your minor children will then the paid into this fund.

This fund is administered by the Master of the High Court for the benefit of minors and other people incapable of managing their own affairs.

The guardian of your child will then need to apply to that fund each and every time he or she needs money for your child’s living expenses. When your child turns 18, he or she can claim the money from the fund.

If you write a will, you can specify that you want the guardian of your child, or children, to manage the money. Alternatively, you can use your will to set up a testamentary trust. This trust only comes into being when you die.

If you are unsure of the ability of a surviving parent or guardian to manage the money, a testamentary trust managed by well-chosen trustees may be a good solution.

A testamentary trust can also be used to manage property for the benefit of minor children.

If you leave property to a minor child, that property cannot be sold without the permission of the Master of the High Court.  Trustees can, however, make decisions about property, including selling it, for the benefit of a minor.

Appoint an executor

Your will is also the document in which you appoint an executor for your estate.

You can appoint any one you think is capable of being an executor, but the Master has to approve the appointment. You should also remember that the role of the executor of your estate can be an onerous one and one that may be best suited to someone with the right skills to do such a job. Appointing a professional may incur a fee, but that fee may be worth paying to minimise problems for your heirs.

The executor needs to wind up your affairs by settling any debts and paying outstanding taxes, recording all your assets and investments, drawing up a liquidation and distribution account, completing an estate duty return and filing the documents with the Master of the High Court. Once the account is approved, the executor must distribute what remains in your estate in line with your will or the Intestate Succession Act.

If you do not appoint an executor in your will, your family can nominate someone, but it must be someone the Master of the High Court believes is capable of being the executor of your estate. Getting approval for the right person can delay the winding up of your estate.

It may be a good idea to appoint a professional executor, especially if your estate is large or complicated, or to appoint a professional to act with a trusted family member as a co-executor.

Some lawyers and trust companies, especially those in banks and insurance companies, will offer you a free will, provided you name the trust company as the executor of your estate. They will then charge your estate an executor’s fee.

Special wishes

A will is also the place where you can record special instructions for your funeral and whether you want to be cremated or buried.

How to make a will

Anyone can make a will as long as they are over the age of 16 and mentally competent to do so. You need to be sure to sign it and have it witnessed properly to ensure it is valid.

You can also use an online will service or a free online will template.

However, unless your affairs are very simple, you would be well advised to get help drafting a will from a professional with experience, such as an attorney (preferably one with a relevant qualification in estate law) or trust company or trust division of a bank or insurer.

Wills you draft yourself, online wills and will templates are typically not suitable for people who have remarried, live with a life partner, have minor children, own multiple properties or a business.

Ensure your will is valid

There are some things you need to do to ensure your will is valid.

• Your will must be written – recorded messages are not enough.
• You must initial every page and sign it at the end.
• It is wise to date your will. If you have made any previous wills, state that your latest one overrides any earlier ones.
• You must sign your will in the presence of two witnesses who are over the age of 14 or it can be contested. The witnesses cannot be anyone who will not inherit from your will or the spouse of anyone who will inherit. The witnesses should also not be any one you appoint as an executor.

Keeping a will

You can keep your will at home, but it is often safer to have it stored in a safe with your financial adviser, or the trust company that draws up your will. You can then keep a copy and inform your family where to find your will.

The Master of the High Court requires the original copy of your will in order to appoint an executor and wind up your estate, so it is important that the original copy does not get lost.