Wills – Sifting the truth out from the rumours

One of the most vicious rumours, or untruths, I encounter on a regular basis in my practice is the belief that if a person dies without a will, their possessions and money will be forfeited to the State.

This is simply not true! If you or someone you know dies without a will, the family of the deceased will inherit although the amount and manner will be determined according to law, being the law of Intestate Succession. These laws largely follow the lines of spousal and blood relationships, with any adopted child being considered a descendant of his or her parents. Family members can apply to be Executor of the Estate or can agree to nominate a third party. Any inheritance due to a minor will be administered by the Guardian’s fund until the minor reaches eighteen years of age (possibly this is where the rumour originated as the funds are “frozen” and administered by the Master’s Office, ie the State).

So now the questions begs, why bother with a Will?

Quite simply, losing a loved one is traumatic and complicated enough without having to fight over executorships and be beholden upon laws that cannot always know the wishes of the deceased nor the dynamics of each family, not to mention the time that it can take to wind up a deceased Estate.

Like getting a driver’s licence, a banking account, or a roof over your head, getting a Will should be just one of those things that everyone does as a matter of course but not without applying a measure of thought and effort in doing so.

While a will should not be a complicated instrument, it is important that professional assistance be obtained to not only ensure that the Estate is wound up as quickly and cost-efficiently as possible but also to ensure compliance with the relevant Laws in the drawing up of the Will as non-compliance can result in the Will being declared invalid when it is all too late to change it. Similarly, while a template Will purchased at a stationery shop might suffice, it can also fail to take into account and put in place measures which will assist with the actual practicalities of those left behind need to deal with. This can be a time consuming and expensive mistake.

As you turn your mind to your own situation and Will, let me assist with some oft asked questions and the answers thereto.

Who can have their own Will?

Anyone mentally sound and 16 years or older. A witness to a Will can be as young as 14 years old.

What does an Executor do?

He or she administers the Estate of the deceased under the directions of the Master of the High Court.

Can my spouse or other beneficiary also be an Executor of my Estate?

It is advisable and indeed practical to nominate your spouse as Executor but with the power of substitution. This will empower him or her to nominate a professional of their own choice to either take over as Executor or assist as agent to do so. The Master is loathe to entertain laypersons as it is simply too time consuming to do so.

Exercise due caution in the nomination of Executor or agent as you would in the selection of any professional for any significant life event, such as accountant or surgeon, and remember too that it is prudent to nominate an alternative Executor in case the first chosen executor dies first and more delays will be incurred.

How do I nominate guardians for my child/ren and ensure their inheritance does not get stuck in the Guardian’s Fund?

Usually the surviving parent becomes the child’s guardian but if both parents die at the same time, the Will should contain the details of the substituted guardian.

In nominating a guardian, remember that a Will can and should be updated as the minor children grow up with altered needs and requirements. For example, if your first choice of guardian is a grandparent, this can be updated as time passes – in other words consider the best option for the next few years rather than trying to anticipate everything from now until they reach majority. You can review your choice every few years.. Do remember also to discuss the matter with your chosen guardian and obtain their sincere commitment.

Usually a Will Trust is set up to provide for the administration and investment of funds for any minor children which can be used to their benefit until they reach majority by the Trustees chosen in your Will.

What about insurance policies that have nominated beneficiaries- should they be included in the Will?

Insurance policies where the insured person has nominated a beneficiary will not devolve in terms of the provisions of the Will. The benefits of the policy will go to the person nominated in that document and bypasses the estate entirely, except for estate duty calculations. The insurer will give regard to the wishes of the insured first and foremost however which may include bestowing the benefits on a beneficiary not named in the policy. Athough not named in the life policy of her decesased spouse, the benefits were still paid to my client and not the Deceased’s parents as nominated as there was clear evidence that the Deceased intended changing the policy but never did so before his life was cut prematurely short.

Do not make the mistake though of thinking that a nomination of another person in your will nullifies the nomination in the insurance policy as the terms of the insurance policy will override the Will.

Is a certified copy of my Will acceptable to the Master of the High Court ?

The Master requires the original document and will only accept a copy of a Will on Order of the High Court, an expensive and lengthy procedure. Rather ensure that the several copies of your Will are signed in the original by yourself and your witnesses and leave the originals with strategic people such as spouse, Executor, accountant, and so forth.

What happens if I need to change my will or if I get divorced and I forgot to change it ?

In order to be valid, Wills must be dated so changes can be made at any time by entering into a Codicil, like an addendum to the Will, or by entering into a brand new Will which is dated post the previous one. While better to destroy old Wills, the Master will accept the last dated on any Wills in existence. Do not try and make additions or deletions on an existing Will as it is most likely that these will be deemed invalid in terms of the Legislation and the entire Will could be rendered invalid.

If on the other hand, you die within 3 months of getting divorced, any bequests to your divorced spouse will be deemed revoked. This allows a divorced person a period of three months to amend his or 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.

What should I do now?

No matter how big or small your Estate, your Will and estate plan should be kept as simple as possible so that it is easy to execute. Nominate people using full names and the description of your relationship to them in order to avoid any confusion. Be absolutely clear in your description of items named in your will.

Most importantly keep it simple with simple solutions.

We look forward to showing you how.