A will allows you to provide for your family and removes complications after you pass away, but if you die without a will, it could cause delays in winding up your estate and your wishes may not be carried out.
“Through years of winding up deceased estates, we see on an almost daily basis the reality of families struggling to deal with the loss of a loved one. This struggle is infinitely more difficult when the loved one’s affairs are not in order and they die without a will,” says Alex Simeonides, CEO of wills administrator Capital Legacy.
With no will and no clear wishes, the door is left open for drama to step in. For example, without a will you forfeit the opportunity to nominate preferred guardians for your children. You lose control over who inherits your assets, leaving it all to be distributed according to South African legislation.
Simeonides adds that delayed estate settlements can worsen the already challenging grieving process for your family, and family feuds could erupt if there is no clarity as to your wishes.
Moremadi Mabule, Head of Sales: Beneficiary Fund at Sanlam Trust, says there is a mistaken belief that wills are only necessary for people with lots of assets.
“If you have a minor child (under 18 years), pets, a car or house, savings or investments of any size, cryptocurrency, photos or music in the cloud, or sentimental items such as jewellery or art – even if they are not very valuable – then you need a will,” says Mabule.
A recent Sanlam survey of digitally active, working South Africans found that 98% of people had one or more of these assets, but 45% don’t have a will.
Having a will allows you to can decide who inherits what from your estate, as long as your wishes are ethical and legal.
There are many free online will templates but if you have a family, especially minor children, it may be worth talking to a wills consultant or a financial adviser.
Different family structures to consider in a will
- The divorce settlements: Often, partners come from previous relationships that ended in divorce. It’s important to know what’s in the divorce settlement(s) and how that affects a new marriage.
- Marital regime: Are you married in or out of community of property? If out of community, did you include the accrual system in your ante-nuptial contract? Who owns which assets?
- Beneficiaries: Stepchildren do not stand to inherit unless you stipulate as such or adopt them as your children. You need to be explicit with your wording, so there’s no confusion. If your stepchildren are excluded from your estate inheritance, but they can prove they were financially dependent on you, they can claim from your pension fund.
Adopted children have the same rights as biological children. Should you die without a will, they’ll be regarded as your children, in the intestate process.
If you have a joint will, or a will that nominates your ex-spouse to inherit, you have 90 days after your divorce to amend this. Otherwise, your ex- spouse still stands to inherit.
It’s best to still have separate wills to ensure that the final wishes of each spouse are carried out.
Your marital regime plays a massive role. If you’re married out of community of property, with exclusion of accrual for example, you can exercise freedom of testation and leave everything to your children.
However, your spouse can still claim from the estate in terms of the Intestate Succession Act and Maintenance of the Surviving Spouse Act.
Unmarried with a life partner
Strictly speaking there’s no such thing as a ‘common-law spouse’ in South Africa, although new legislation may soon pass enabling an unmarried life partner to claim from a partner’s estate, through the Intestate Succession Act and Maintenance of the Surviving Spouse Act.
Recent court decisions have granted certain rights to life partners that they did not previously enjoy. This can seriously delay the winding-up of an estate, so it’s much kinder and fairer to include a partner in your planning.
According to the Sanlam survey, 18% of people were living with a partner and 10% had children with their unmarried partner. It’s important to plan together and make sure each partner is provided for.
You can stipulate your partner as the main beneficiary or make your children your beneficiaries and plan for your partner elsewhere – through life cover, for example.
Providing for parents and other extended family members
If you die without a will, your parents, siblings and other family members have no maintenance claim from your estate. However, if they can prove their financial dependence on you, they could claim from your pension.
It’s best to stipulate whether you want to continue supporting family members (in addition to your children and spouse), through explicit wording in your will.
Polygamy and polyandry
Providing for multiple partners is complex and needs to be rigorously planned for.
If you die without a will, your estate will be divided between your partners (and your children), according to your marital regimes.
If you draft a will, you can exercise freedom of testation over your share of the estate, however, the marital regime for each relationship will play a major role in how the estate is divided.
The default regime is IN community of property.
A few requirements for a will to be valid in South Africa:
- A person must be over the age of 16.
- The will must be signed in ink (wet signature).
- The will must be signed by the testator/testatrix, on each page and at the end.
- The signing of the will should be witnessed by two competent independent witnesses, both present at the same time, who sign on each page as well as at the end of the will. The independent witnesses must be 14 years or older, be mentally capable of providing testimony in court at the time of signing, not be mentioned in the will, and not be the spouse of anyone who has been specified in the will.
Death can have an expensive price tag
Many people are unaware of the various costs that are incurred when winding up an estate. There are executor fees, taxes, and conveyancing fees if a property is to be transferred to an heir.
Sanlam Trust found that over 40% of the deceased estates it administers have insufficient cash to cover all debts, costs, cash bequests and taxes payable during one’s lifetime, and income tax, capital gains tax and estate duty upon death.
There are insurance policies that one can purchase which cover the winding-up of an estate and provide immediate cash for your family. It can even fund the running costs of a trust for your children.
Wills administrator Capital Legacy, Sanlam Trust and insurer Discovery Life offer a full estate planning service that provides clients with a fully advised will as well as an insurance policy that completely covers the costs of winding up the estate. The insurance premium is calculated based on your assets as stipulated in the will. Insurer Clientele also offers an Estate Preservation Plan.
This article first appeared in City Press.