What is a will?
A will, also referred to as a testament, is a document in which a person (testator) states what should happen to their property (estate) when they pass away. The document also nominates a person (executor) responsible for managing the deceased testator’s property until its final distribution. Learn more about wills & estates by registering for the Gawie le Roux Institute of Law’s Wills and estates webinar series.
What happens if you die without a will?
If you die without having made a valid will, in the eyes of the law, you passed away ‘intestate’. Your estate will then dissolve according to the Intestate Succession Act, 1978. This means that your estate will be divided amongst your surviving spouse, children, siblings or parents according to a set formula and not according to what you might have wished.
Beneficiaries you may never have wished to inherit from you might benefit more than those you truly care for. In some cases, the most important people in your life might be left with no legal entitlement to your estate or assets.
If you die ‘intestate’, it can take a long time to officially appoint an executor and the appointed executor might not have been your first choice. Business continuity is impossible until an executor is appointed, resulting in a loss of income.
Besides the extended process, income loss, and other extra, unnecessary costs, an ‘intestate’ death means that no trust can be set up for minor beneficiaries and their inheritance will be sold for cash and deposited into the Guardians Fund.
Lastly, in addition to the grief your loved ones experience after your passing, not having left a will with clear instructions of your wishes, ultimately results in conflict and disputes that could have been avoided.
Common misconceptions about having a will
It is only for “old people”
A popular misconception about wills is that it only becomes necessary to have one in place once you have reached a certain age. Thus, most people continue living their lives underestimating the importance of having a will and ignoring the unfortunate reality of “old age” not being guaranteed to anyone. In fact, anyone above the age of 16 can have a valid will and there is no ‘right age’ to start getting your will in order.
It is only for married people
A common mistake people make is believing that they only need to draw up a will once they are married and own expensive property. In actuality, regardless of if you are single or married, if you have some savings in the bank, earn a salary, own a car, furniture or other personal belongings, you need to start considering involving a professional to help you draw up a will.
You only need to draw up a will once
It is vital that you update your will after significant events such as marriage, divorce or childbirth take place. Your loved ones will be greatly disadvantaged if your will is not up to date and something happens to you. If your current will does not include recent property acquisitions or financial investments, you might want to consider including it in an updated will as soon as possible. Even without any significant life changes, it is advisable to review your will every 5 years.
You don’t need a professional to help you set up your will
Can you draw up a will by yourself? Yes.
Is it advisable to draw it up yourself? No!
It is crucial to be mindful of the strict minimum prescribed requirements which must be complied with for a will to be valid. Imagine the tragedy of making an error due to ignorance and it rendering your will invalid. It is therefore advisable to contact a professional to either draft your will or to check it for its validity.
Conclusion
It is in your best interest to have a valid will in place, not only to ensure that your estate is handled according to your wishes after you die, but also to appoint guardians over minors, keep records of assets relatives might not be aware of, limit taxes on deceased estates and ultimately, to simplify the process of dividing your estate amongst loved ones.
People also ask
How long are wills valid?
In basic terms, a will cannot expire and is valid forever unless it is revoked by the creation of a newer will.
How many wills can a person have?
A person can have more than one will if previously made wills are not invalidated or revoked. This is usually only the case when an estate owner tries to avoid or reduce effective taxes on an estate or assets. It is, however, not advised to have more than one will since it will create a lot of confusion and conflict after the testator’s death, and rules and processes concerning having more than one will are complicated since the documents need to work together.