MANY consumers unfortunately do not make wills before they die and this causes untold problems for their loved ones.
MANY consumers unfortunately do not make wills before they die and this causes untold problems for their loved ones.
Problems such as the ones experienced by Euphronisa Khumalo could have been avoided if her husband had left a will.
With National Wills Week hosted by the Law Society from September 17 and 21, this might just be the right time to get your will in order.
Consumer Line spoke to Meyer de Waal of Oosthuizen and Meyer de Waal Attorneys, who shed some light on the importance of having a will.
De Waal gave the following tips on the importance if having a will.
l Any person over the age of 16 may legally make, sign and be a witness to a will.
l But if you sign as a witness to a will, you may be prohibited from inheriting from that will.
l So, be advised that when you select your witnesses make sure that they are not nominated as heirs.
l Select independent witnesses over the age of 14.
l It is best to consult an expert in the field of drafting and preparing wills. For example, there is income tax Capital Gains tax and Subdivision of Agricultural Land Act to be considered when drawing a will.
l If you are married according to the laws of another country, the laws of that country might determine the winding-up process and distribution of your estate. If you are married according to Muslim rites, make sure you consult a proper advisor to ensure that your will is drafted according to Shariah law.
l The estate of a person who is subject to customary law and who dies without a valid will, will devolve in accordance with the law of intestate succession as regulated by the Intestate Succession Act.
l When you draft a will you usually start by revoking all previous wills. That means you have to look up and notify the institution that kept your will in safe custody that they must destroy the will held by them. It is important to date your will because if you forget to insert a date, the result might be that the current will would be read together with a previous will, which might cause confusion if the two wills differ.
l If you have assets in another country, consider preparing a sepa-rate will for those assets as each country may have its own "inheritance laws".
l You will have to appoint an executor to wind up the estate after your death. Establish who you can entrust with this important task. Some institutions may hold that the surviving spouse may not be appointed as executor. Though the Master of the High Court may not appoint the surviving spouse as executor without appointing a qualified agent to assist the surviving spouse as executor, the latter appointment may ensure that the surviving spouse and/or family enjoys more control over the administration of the estate, compared to when an institution is appointed as sole executor to wind up the estate
l Inheritance to an heir who is under 18 years of age might have certain restrictions because a minor is usually not allowed to receive cash or movable assets directly. If no provisions are made in the will, it might result in the cash being paid over to the guardians fund at the office of the master.
l Moveable assets awarded to a minor might cause a logistical problem as the guardian of the child may receive the asset and hold it in custody for the child, but might be required to provide a bond of surety of equal value to the assets received. The best way to overcome this might be to create a trust in the will and to appoint trustees to receive, manage and administer the inheritance received. It is important not to try to "rule from the grave" by creating very strict conditions and requirements in your will.
l The next step would be to appoint the heirs in your estate. You need not list all your assets or remaining assets. You can merely refer thereto as "the remainder of my estate". This will include all the assets in your estate, but will exclude items such as insurance policies paid out to third parties directly after your death.
l The will must be drafted in clear and understandable language. In South Africa, with a multitude of official languages, it can be a problem if the professional person who prepares your will is not fluent in your mother tongue.
De Waal, who is also a member of the Law Society's Wills, Estates and Trusts committee (Western Cape), says there is software available to enable the drafting of a will in any official South African language and then, in the same document, translated into English (similar to "sub-titles") to ensure that, after your death, the executor and/or officials dealing with your estate may be able to interpret the will in a manner consistent with the intentions of the testator.
He says assistance is also available to provide cover to pay for the winding up of the estate as in many instances a migrant worker may die in the city where he worked, having no relationship with a partner in the city, but a wife and family in a rural area and if no will existed to determine the burial rights and distribution of death benefits and assets after the death of the breadwinner, uncertainty between the two families may result in disputes, leaving all in limbo and with no family member being able to claim benefits and/or burial rights.
More info on LSSA website: http://www.lssa.org.za/?q=con,228, National Wills Week.
Draw up a will and save loved ones a lot of grief
MANY consumers unfortunately do not make wills before they die and this causes untold problems for their loved ones.
MANY consumers unfortunately do not make wills before they die and this causes untold problems for their loved ones.
Problems such as the ones experienced by Euphronisa Khumalo could have been avoided if her husband had left a will.
With National Wills Week hosted by the Law Society from September 17 and 21, this might just be the right time to get your will in order.
Consumer Line spoke to Meyer de Waal of Oosthuizen and Meyer de Waal Attorneys, who shed some light on the importance of having a will.
De Waal gave the following tips on the importance if having a will.
l Any person over the age of 16 may legally make, sign and be a witness to a will.
l But if you sign as a witness to a will, you may be prohibited from inheriting from that will.
l So, be advised that when you select your witnesses make sure that they are not nominated as heirs.
l Select independent witnesses over the age of 14.
l It is best to consult an expert in the field of drafting and preparing wills. For example, there is income tax Capital Gains tax and Subdivision of Agricultural Land Act to be considered when drawing a will.
l If you are married according to the laws of another country, the laws of that country might determine the winding-up process and distribution of your estate. If you are married according to Muslim rites, make sure you consult a proper advisor to ensure that your will is drafted according to Shariah law.
l The estate of a person who is subject to customary law and who dies without a valid will, will devolve in accordance with the law of intestate succession as regulated by the Intestate Succession Act.
l When you draft a will you usually start by revoking all previous wills. That means you have to look up and notify the institution that kept your will in safe custody that they must destroy the will held by them. It is important to date your will because if you forget to insert a date, the result might be that the current will would be read together with a previous will, which might cause confusion if the two wills differ.
l If you have assets in another country, consider preparing a sepa-rate will for those assets as each country may have its own "inheritance laws".
l You will have to appoint an executor to wind up the estate after your death. Establish who you can entrust with this important task. Some institutions may hold that the surviving spouse may not be appointed as executor. Though the Master of the High Court may not appoint the surviving spouse as executor without appointing a qualified agent to assist the surviving spouse as executor, the latter appointment may ensure that the surviving spouse and/or family enjoys more control over the administration of the estate, compared to when an institution is appointed as sole executor to wind up the estate
l Inheritance to an heir who is under 18 years of age might have certain restrictions because a minor is usually not allowed to receive cash or movable assets directly. If no provisions are made in the will, it might result in the cash being paid over to the guardians fund at the office of the master.
l Moveable assets awarded to a minor might cause a logistical problem as the guardian of the child may receive the asset and hold it in custody for the child, but might be required to provide a bond of surety of equal value to the assets received. The best way to overcome this might be to create a trust in the will and to appoint trustees to receive, manage and administer the inheritance received. It is important not to try to "rule from the grave" by creating very strict conditions and requirements in your will.
l The next step would be to appoint the heirs in your estate. You need not list all your assets or remaining assets. You can merely refer thereto as "the remainder of my estate". This will include all the assets in your estate, but will exclude items such as insurance policies paid out to third parties directly after your death.
l The will must be drafted in clear and understandable language. In South Africa, with a multitude of official languages, it can be a problem if the professional person who prepares your will is not fluent in your mother tongue.
De Waal, who is also a member of the Law Society's Wills, Estates and Trusts committee (Western Cape), says there is software available to enable the drafting of a will in any official South African language and then, in the same document, translated into English (similar to "sub-titles") to ensure that, after your death, the executor and/or officials dealing with your estate may be able to interpret the will in a manner consistent with the intentions of the testator.
He says assistance is also available to provide cover to pay for the winding up of the estate as in many instances a migrant worker may die in the city where he worked, having no relationship with a partner in the city, but a wife and family in a rural area and if no will existed to determine the burial rights and distribution of death benefits and assets after the death of the breadwinner, uncertainty between the two families may result in disputes, leaving all in limbo and with no family member being able to claim benefits and/or burial rights.
More info on LSSA website: http://www.lssa.org.za/?q=con,228, National Wills Week.
This article was first published in the printed newspaper and eEdition on 10 September 2012. Click on this link to view the eEdition
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