|Peace of mind
for those you leave behind
What is a will?
|A will is a
written document which sets out what is to
happen to the property of someone after her or his
death. To be valid, the will must comply
with requirements set out in the law.
Why have a will?
Choice of heirs
It enables the
testator (the person whose will it is) to
choose his heirs and beneficiaries. It also
enables the testator to determine the
*size of the benefit,
*and whether any
conditions must be complied with before persons may benefit.
who dies without a valid will, dies
intestate and the assets of such a person
will be at the mercy of the applicable
statutes and common law.
The effect of
dying intestate is a delay in
administration, a probable increase in costs
and a distribution of assets which may
diverge significantly from that which the
deceased would have wished.
Choice of executor
In a will the
testator can appoint an executor of choice
rather than leaving this difficult and
time–consuming task to be done by someone
the testator does not have confidence in.
This also prevents unnecessary delays in the
administrative process and frustration for
one’s family. To preserve the harmony of the
family after the death of the testator, a
neutral executor such as an attorney can be
a useful choice.
Choice of a guardian
allows one to nominate guardians for minor
children and give specific directions as to
the benefits, raising and education of the
Choice of administrator, trustee or
investment manager over the benefits of the
In a will, financial
provisions can be put in place for the
benefit of the testators children or other
heirs. In the absence of such provisions,
the funds available for the minor children
will be held by the Guardian’s Fund at the
office of the Master. Funds held in the
Guardian’s fund are not freely accessible
and attract interest at an extremely low
Estate planning vehicle
Irrespective of the estate size and whether
use has already been made of estate
planning, the will on its own constitutes an
effective and important instrument for sound
estate planning. It enables the testator to
make use of the various estate duty
concessions (eg. the spouse deduction.)
Medium for co-ordination of distribution on
The will is an important
medium for the testator to communicate last
instructions to other trustees or third
parties in respect of property falling
outside the estate of the testator (eg.
assets or money held in trust, under policy
nominations or in retirement funds). It may
also effectively be used to confirm desired
beneficiary nominations made under such
Ability to exclude property from spouse or
creditors of a beneficiary
Safeguards can be built into a will to
protect a benefit. Otherwise such a benefit
will be exposed to the pickings of creditors
of the beneficiary. Without proper
safeguards, the benefit could fall into the
joint estate of a married beneficiary. It
might also be subject to an accrual claim
from the spouse of the beneficiary. The will
could provide for maintenance of an
insolvent beneficiary without falling into
the insolvent estate of such a beneficiary.
Varying common or statutory law
Certain legal consequences, for instance the
rights of illegitimate or adopted children
to inherit, may be varied by will.
|Even if you feel
that you have no assets to bequeath it is still
important to make a will. You may inherit
something just before you die and you may not be
in a position to make a will anymore ie because
you may be mentally incapable. A will
facilitates the administration of your estate
for your loved ones.
Who may make a will ?
|A person 16 years
or older may make a will unless he is mentally
Formalities of making a valid will
|A will must be a
written document and can not be done orally. The
will must be signed at the end by the testator
and if it consists of more than one page, every
page must be signed. The will must be witnessed
by two competent people signing in the presence
of the testator on every page the testator has
signed. A witness must be aged 14 or over.
involved in the execution of a will including
witnesses, persons who sign at the direction of
the testator and persons who write the will in
their own handwriting or their spouses may not
benefit thereunder, with certain exceptions.
|It is always
safer for the testator to consult a professional
such as an attorney rather than run the risk of
leaving behind loved ones with an invalid or
Can a will contain any bequest or direction ?
|In South Africa
we have freedom of testation, but this freedom
is not absolute. A testamentary direction which
is illegal or against public policy is
unenforceable. The duty to support will limit a
parent’s freedom of testation and the liability
of a parent’s estate for support of a dependant
child is established in our law. A person can
execute a new will at any time and the new one
will normally replace older will. The testator
may also not “rule from the grave” by
prescribing unlimited directions to generations
How to make a will
|It is advisable
to contact a professional person to assist you
with the drafting of your will. The best person
to assist you is an attorney dealing with
administration of estates. The attorney will be
able to advise you as to the best way in which
to structure your will so that it will give
effect to all your wishes. He/she will further
be able to inform you on the best ways to
structure your estate for estate planning
purposes. An attorney will usually charge you
when you instruct him/her to draft your will.
However when the estate is wound up he/she is
bound by a set amount prescribed by the law for
work done in regard with the administration of
Clauses for a
|To direct the
thoughts of the prospective testator, these are
examples of the types of clauses which occur
regularly in wills and exclude any other
provisions that the testator would like to make:
- Revocation of previous wills.
- Legacies.‹ie. specific bequests›
- Appointment of heirs.
- Trust clause ‹when necessary›.
- Appointment of executor ‹and trustee
- Powers of trustees ‹where necessary›.
- Exclusion from community of property.
- Disposal of remains.
Use simple and clear
|Joe: “I can
tell that this document has not been drafted by
Jill: “How can you
Joe: “Well, its easy. There
are two whole words on the page that I can
|A will should be
drafted in precise but clear language. Legal
jargon should be avoided. An example of how
concise words make life ‹and in this case death›
|“I give, devise
and bequeath the whole of the rest, residue and
remainder of my estate whether movable or
immovable and wheresoever situate, and whether
the same be in possession, reversion, remainder,
expectancy or contingency, unto and in favour of
be replaced with a simple and concise
“I leave my assets to John
|So take the
first step. You must start somewhere. It can be
reviewed later. Just do it.
please contact us.
Administration of Estates
|Winding up of an
|Except for the
discomfort, the death of a relation can result
in a time of uncertainty for those left behind.
The winding up of an estate should be done by a
professional person to ensure a reasonably quick
and smooth conclusion of the process. The Master
of the High Court is the government authority
who oversees the administration of the estate.
steps are required to wind up an estate to the
satisfaction of the Master :
- Reporting the estate to the Master of
the High Court.
- Preparing an inventory of the assets of
- Appointment of executor.
- Advertisement for debtors and creditors.
- Opening of estate bank account.
- Payment of liabilities.
- Liquidation and distribution account.
- Advertisement of account.
- Estate duty return.
- Distribution to heirs.
- Discharge of executor.
|Property in a
deceased estate which is not disposed of under a
will must be distributed under the laws relating
to intestate succession. The law sets out the
rules in terms of which property not subject to
the provisions of a will must be distributed.
If a deceased person is survived by a spouse but
not a descendant, the spouse will inherit. If he
/ she is survived by a descendant but not a
spouse, the descendant inherits. If he / she is
survived by both a spouse and a descendant, the
spouse will inherit the greater of a child’s
share or an amount fixed from time to time by
the Minister of Justice, currently R 125 000–00.
In the event of the deceased having neither
descendants nor spouse, his / her parents will
inherit. The law prescribes the further path of
succession of an intestate where there are no
immediate relatives or no relatives at all. If
there are no relations the estate goes to the
enjoyment of your assets for you and those
nearest to you.
|Most people work
hard to earn a living and are so busy at it that
little ‹if any› thought is given to plan what
happens with what they have earned. Then
suddenly ‹in many instances too late› they
realize that there are threats to their assets
and they begin frantic attempts in search for a
cure to save what is left.
Prevention is better than cure
and the fact that you are reading this page is
the first step to a more secure estate.
|Who should plan
|If your answer to
any of the following questions is “yes”, then
you should consult an estate planner as soon as
- Do you intend getting
- Are you going to or do
you already have a child?
- Are you having marital
- Are you engaged to be
- Are you married?
- Do you intend starting a
- Do you own your own
- Are you a tax payer?
- Are you having financial
- Are you changing
- Was your will made longer
than a year ago?
- Is your will lost?
- Have you no will?
- Do you want provision for
when you retire?
- Are you retired and
concerned about your investments?
- Are you concerned about
- Do you intend making
- Are you earning a salary?
- Are you buying or selling
a home or business?
We could save you many hundred thousands of
rands by assisting you to structure your estate
properly, and don't think your estate is too
small to save that type of money. Contact us for
more information and add value to your estate