To emphasise the importance of having a valid will when you pass away, Government has proclaimed this week, 26-31 October 2020, as National Wills Week.
While a will is one of the most important documents in your life, fact is that fewer than 30% of South Africans pass away with a will, often with dire consequences for the loved ones left behind. Stories about family members fighting tooth and nail about their inheritance are rife!
Every year the Law Society of South Africa (LSSA) promotes Wills Week to combat the poor wills’ statistic, and participating attorneys offer their will-drafting services for basic wills at no cost to clients.
All too often we tend to put important issues such as drawing up a will on the back burner, oblivious of the fact that death can knock on our door at any moment. Therefore, it can only benefit your loved ones that you set aside the time to draw up your will to avoid unnecessary conflict and problems after you’ve passed away.
Unless you are an absolute expert in this area, you should rather consult an attorney or an institution specialising in wills/estate planning to draw it up on your behalf.
Attorneys, for example, are professionals qualified in law and can advise you on any problem that may arise with regard to your will. An attorney also has the necessary knowledge and expertise to ensure that your will is valid and complies with your wishes. Often a will is not valid because the person who drafted it did not have the necessary legal knowledge to ensure that the requirements of the law are met.
One should also bear in mind that a will should be practical. So you should think ahead. It would NOT be practical, for example, to detail your funeral in your will, as the details of your will will only be made public after your funeral.
Another important aspect to bear in mind is the appointment of an appropriate executor. An executor is the person who will administer your will according to your wishes set out in your will and who must look after the best interests of every beneficiary – an enormous responsibility, hence the choice of an executor should not be taken lightly!
Sometimes the spouse of the deceased is appointed the executor. This would be impractical because the death of wife/husband is an emotional and traumatic event, which may make it difficult for the surviving partner to make sound financial decisions at this time. Moreover, ensuring that your estate is handled professionally, you can be assured of objectivity and reliability.
Revise your will
Equally important is that you regularly revise your will. Over the years, many things in your life – such as a marriage, the birth of children, the acquisition of important assets, the death of a family member and legal changes – will require additions or amendments to your will.
What happens if you die without a valid will?
If you die without leaving a valid will, your assets will be distributed according to the provisions of the Intestate Succession Act. The provisions of this Act are generally fair and ensure that your possessions are transferred to your spouse and children.
BUT, the following problems may arise if you die without leaving a will: