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Writing Your Will

What is a will?

A will is a legal document which comes into effect when you die. Your will explains how and to whom you want your estate to be distributed. Your estate includes everything that you own at the time of your death.

How old do I have to be to have a will?

Any person 16 years and older can have a will drawn up provided that person is mentally equipped to understand the impact of his or her actions. A witness to a will must be at least 14 years old. Anyone who is 14 years old and over and who at the time that they witness the will is competent to give evidence in court. A beneficiary to a will should not sign as a witness, because they will then be disqualified from receiving any benefit from that will. There are some exceptions to this rule. Consult your legal representative for more information in this regard.

What are the requirements for a valid will?

How can I make a valid will if I cannot sign my name?

A testator can sign a will by means of a mark, e.g. a thumbprint or making of a cross. Someone else may also sign on their behalf. In both cases, whether they make a mark or someone else signs on their behalf, it must be done in the presence of two or more competent witnesses and a commissioner of oaths, all of which to be present at the same time. You can find a comissioner of oaths at your local police station.

The will must contain a certificate by the commissioner of oaths, that he is satisfied as to the identity of the testator and that this is the will of the testator. The certificate must be signed by the commissioner. Each page of the will must also be signed by the commissioner anywhere on the page.

A witness to a will may not sign by means of a mark.

When do I nominate my spouse as an executor & when should I nominate an independent executor to administer my estate?

It is generally advisable to nominate your spouse as an executor. It enables them the freedom to compare and choose most suitable financial or legal assistance in administering the estate and the ability to negotiate a rate. In cases where one anticipates that there is likely to be conflict amongst your beneficiaries it is advisable to have an independent executor.

What is the role of the Executor in your last will and testament?

An executor is simply someone who executes, or carries out, a task. In the case of a will and testament, the executor is the individual who is charged with the management of the deceased estate and carrying out the tasks outlined by the writer. The executor automatically acquires the title to any property which falls within the estate. In this way, the executor acts as the owner of any property to which an heir has a claim. An executor may not use these titles for their own benefit, unless this is explicitly provided for in the will and testament.

The executor must: obtain a number of "certified" copies of the death certificate needed for probate. Locate the will and testament, as well as other important document such as stock certificates, trust documents and insurance policies. Apply to appear before probate court. Notify beneficiaries named in the will and testament. Send death notices to the post office, utilities, banks and other service providers. Create and inventory of belongings and have them appraised if necessary. Check for deceased's creditors and debtors. File for insurance benefits. Open an account in the name of the estate to cover expenses, such as legal fees, funeral expenses, estate duty and taxes. File estate duties and capital gains tax returns.

What happens if the person nominated as the executor in my will dies before me?

If the executor you nominated dies before you, the Master will consider nominations in writing from your family. He may even convene a meeting to discuss an executor. All this will delay the settlement of your estate. To avoid this you can nominate a second person to stand in as the executor should there be any reason why your nominated executor cannot carry out the task.

Why should I have a will?

In your will you can select who will inherit your property, you can choose who shall be the guardians of your children and specify who will be in charge of your estate administration. Having a will gives you control over your estate rather than letting legislation rule over your affairs after you die. You can stipulate that money be held in trust for minor children where it can be more easily accessed by your chosen guardians for maintenance and educational needs or for moneys to be held in the State Guardians Fund to be held until whatever age you stipulate.

If you don't have a will, your assets may not be left to the person of your choice. It can take a long time to have an executor appointed. The executor who is appointed may be somebody you would not have chosen yourself. Having a will drawen up isn’t difficult or expensive but not doing so can cause unnecessary strife and stress for family and loved ones during a very difficult time.

What about guardianship of my children?

Generally the surviving parent is automatically the child's guardian. If one has minor children (under the age of 18 years), one should appoint someone to act as a substitute guardian in the event of the surviving parent dying. Special care must be taken in cases where testators are divorced and a final court order exists in respect of minors which will override guardianship.

Things to consider when nominating a guardian. If you are worried because your first choice is older than you are, focus on who would be the best choice to take care of your children for the next few years, knowing that you can change your choice as your children and their nominated guardians grow older. You can review your choice again every few years and update your will accordingly. If members of your family are unhappy about your choice, your first loyalty is to your children. You should make the choices that you think will serve your children best. Be sure to discuss your choice with your chosen guardian. To help alleviate conflict about your selection of guardianship you can leave a written explanation of your choices.

Is it okay to leave assets to 'my children' without stipulating their names?

Yes it is okay, but it is always preferable to give full names and even ID numbers of all your beneficiaries to be absolutely certain that there is no confusion. If you stipulate "my children" as beneficiaires, without giving specific names this will include all of your children, i.e. children of your current marriage, your previous marriage, adopted children and illegitimate children.

What if I’ve nominated a beneficiary in an insurance policy and in my will I have nominated someone else? Insurance policies where the insured person has nominated a beneficiary, will not devolve in terms of the provisions of the will. The policy will go to the person nominated in the policy and bypass the estate entirely, except for estate duty calculations.

People sometimes think that they can revoke beneficiaries nominated in a life assurance policy by simply nominating other beneficiaries in their will. However, this is not the case. The life assurer has a contractual relationship with you, and will pay out the benefits to the beneficiaries nominated in your assurance contract regardless of whether your will states otherwise. If you want to change the beneficiaries of your policy, you should do this directly with your life assurance company.

What if I have given copies to people, but they can't find my original will? If your original will cannot be found, a High Court order will have to be obtained before the Master of the Court can accept a copy of your will. This will lead to additional costs and delays in finalising your estate.

How can I ensure that my original will is found after I die?

You need to tell someone close to you where your will is kept, so that when you die, your family can find your original will. Alternatively, you can print several copies of your will signed by yourself and your witnesses. Each copy will be considered an original because it bears original signatures. You can then arrange for yourself, your financial planner, your executor and a family friend to each keep a copy.

What happens if I have made a new will and an old will turns up after my death?

One of the requirements of a valid will is that it contains the date. All previous wills are revoked by the will containing the most recent date. Your last will with the most recent date is the one that will come into effect. Still, it is a good idea to destroy previous wills when you update your will to avoid any confusion or fraud.

Can I use the will template provided by Funeral Parlours SA as my last will and testament?

Yes, The will template provided by Funeral Parlours SA is adequate to serve as your last will and testament provided you fill it in correctly. Please note: the will template provided by Funeral Parlours SA is designed for simple straightforward cases.

When am I advised to get professional assistance in drawing up my will?

FPSA suggests that unless your circumstances are absolutely simple and straightforward, you should seek legal assistance with your will and reputable financial advice for most efficient and tax effective estate planning. For example, if you have minor children (under 18 years) and would like to nominate guardians and have them manage money on behalf of your child, this is the kind of circumstance in which we feel it would be wise to seek professional advice rather than using the template provided. Getting professional advice and having your will drawn up by an attorney is inexpensive and highly recommended.

What if I forget to change my will after divorce?

According to the Wills Act, if you die within 3 months of the divorce, a bequest to your divorced spouse will be deemed revoked. This allows a divorced person a period of three months to amend his/her will after the trauma of divorce. If one fails to amend one’s will within three months after the divorce, the deemed revocation will fall away, and your divorced spouse will benefit as indicated in the will.

How do I make changes to my existing will?

You cannot alter an existing will by deleting portions with correction fluid or crossing bits out or adding other words or sentences or attaching other sheets of paper which do not comply with the requirements laid out for a valid will. It is far better to prepare a new will altogether and destroy the old one. If you have minor changes and would rather keep your original will and add these changes, this can be done with a codicil. Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will (listed above). When amending a will, it is not necessary for the same witnesses who signed the original to sign the updated will.

What is a codicil?

This is an addition made to supplement or amend an existing will. A codicil must comply with the same requirements as a will in order to be valid. A codicil need not be signed by the same witnesses who signed the original will.

What is the difference between an heir & a legatee?

A legacy is a specified amount of money or property that is left to someone in a will. The person appointed to inherit a specific asset or a particular sum of money is called a legatee. The residue of the estate, the portion left after debts and legacies have been paid out is inherited by heirs. All who benefit from a deceased estate are known as beneficiaries.

Is a verbal promise of an inheritance valid?

No, inheritance will only be valid in terms of a will, or according to Intestate Succession or Customary Law where there is no valid will.

What will happen if I do not leave a will?

If you die without leaving a will or a valid will, your estate will be split up according to the Intestate Succession Act, no. 81 of 1987. The estates of people who die intestate and whose estates are governed by the principles of customary law must be reported to the Magistrate for the area in which the person was resident at the time of their death. The local magistrate should be consulted on how an estate that is subject to customary law will be dealt with.