A last will and testament is a legal document you draft with your final wishes pertaining to your assets and heirs. It is your legal instructions on what to do, that way you know the right people get the right things. Drafting it correctly is important as an invalid Will is basically the same as no Will.
To understand this process better, we need to define and understand certain terms such as assets and heirs and go into a little more detail about the impact of having and not having a Will.
Assets would be everything with a value from the tangible things like property and your possessions and your intangible assets like investments, retirement funds and even ownership in a partnership or a company.
Everything of value falls into your estate, when you die everything in your estate needs to change ownership. This ownership change is where your heirs come into picture.
Heirs are people who are entitled to inherit your assets upon your death. This could be your spouse, children, other dependents maybe parents, siblings or friends to name a few. If you have a Will it means you have chosen your heirs if you don’t have a Will it means the state will determine your heirs according to the law.
What happens if I die without a Will?
The simple answer is – a number of bad things with unintended consequences happen if you die without a will. The detailed answered could take legal academics a few thousand words to explain.
We have put a summary of some of the more pertinent facts:
- To die intestate, means you die without a Will.
- The Act deals with the distribution of your estate is called the Intestate Succession Act
- This Act has rules about the amounts and shares a child and adult heirs can receive.
- It also has a very clear definition for a spouse which clearly excludes cohabitation relationship (partners without any Civil Union, religious or customary marriage)
- There is no common law marriage in the Intestate Succession Act. Which means without a Will your partner’s property will go to their family.
- The High Court will appoint an executor
- You will most likely pay the maximum executor fee
- While this happens they may freeze accounts in your name for months while gathering all the information
- They don’t know your intentions, your family or know about all your assets
- They take longer to wind up while they gather all the bits and pieces
- These delays, cause delays in your family getting the income they need to survive
- Your assets are then distributed evenly according to the rules of the act. NOT how you would have liked
- This could mean heirs need to divide property, have you seen a property be divided properly without any issues?
- You will likely pay more taxes and you cannot negotiate reduced executors fees
- Your assets may need to be sold/auctioned in order to share your assets equally
- Your partner unless legally recognised will not inherit any of your estates
What if I have children?
- If one parent dies it is simple, the other parent will be the legal guardian however, what if the only parent dies without a will?
- In your Will you can nominate a guardian for your children, it doesn’t mean the court will appoint this person but it will be taken into account
- Without a Will the court needs to decide without knowing your family context, they might be placed with someone they don’t know or who you may not even have trusted.
- The court will do the best they can to make a good decision but you are still leaving the fate of your children in the hands of a stranger.
What if I have no relatives, do I still need a Will?
- Without a valid Will, the State needs to wait 30 years to ensure no heirs come forward to claim. After this time the money is forfeited to the State.
What if I have a Will but failed to update It?
If your Will is valid but you fail to update it the court will still honour those heirs even if your intention at death was to do something different. The best way to explain this is in an example:
Scott drafts a Will while married to Tyler stating that Tyler will inherit the entire estate. Sometime later Scott gets divorced, he takes the children and moves to a new house. Scott then meets someone later and several years later passes away. He had discussed it with his spouse and his intention was always to leave everything to his kids, but he never updated his will. Tyler inherits everything according to the valid Will.
This seems crazy surely a divorce will legally invalidate a Will, most sane people would not intentionally leave everything to their ex-spouse. The law states that if you die within 3 months after a divorce that it will treat your ex-spouse as though they had died.
This effectively means that you have 3 months to change your Will before the court would assume it was your intention to keep your Will unchanged.
For those interested the specific piece of legislation that dictates what happens when you die without a will is called the Intestate Succession Act of 81 of 1987. The act addresses what the government must-do if you die without having a will. Wikipedia also has some excellent information on the topic Wikilink. If you would like a copy you are welcome to contact us and we will email you a copy.
Where there is a Will there is a way forward
A Will does not need to be an expensive, complicated process. For many of us, it is about making sure our assets and possessions goes to who we want it to go to. We can change it at any point and there are attorney’s out there that are fantastic at what they do. Our estate team are brilliant. They do not charge for a Will if you appoint them as executor and they are also willing to negotiate fees.
By negotiating and putting all this in place upfront, it gives you peace of mind now but it also means your dependents are looked after.
In short by having a valid Will you:
- Make things much easier on your family during a difficult time
- Save money and prevent family feuds.
- Ensure children and dependents are properly taken care of
- Nominate a person or company you know and trust to manage this process and the finances
- Structure your estate to pay less tax
- Make sure there is enough liquidity in the estate so your family don’t have to sell property to settle debts
If you need help drafting your Will or looking at the financial implications of the changings you would like to make let us know.
We want every one of our clients to have a Will. We cannot reliably plan holistically without knowing your family is taken care of.
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