Frequently asked questions on Living Wills
Without a Will in place, the state will determine how your property is divided. Here are eight key questions to help you with your Living Will.
According to reports, 70% of South Africa’s working population do not have a Will. When a loved one dies without a Will, the repercussions for the family can be devastating.
Crafting a Living Will that’s legally sound and in line with South Africa’s tax laws helps to ensure your loved ones are left financially independent and that your assets go to them upon your death. It also enables you to express your wishes on how your estate should be divided once you’re gone and who will take care of your minor children. That’s why a Will is one of the most important documents you will ever craft in your life.
What to know about Living Wills
Here are eight questions and answers around living wills:
- Why do I need a Living Will?
- What happens if I die without a Will?
- Why do I need to appoint an executor?
- What makes a Living Will valid?
- What can make a Will invalid?
- How often should I review my Living Will?
- Where should I keep my Living Will?
- Do I need a professional to help me draft my Will?
Financial planning experts agree that the drafting of a Will is important, regardless of your income or education level. Your Will leaves a clear description to your dependents of your intentions regarding the assets in your estate.
In your Will, you can stipulate how your assets are distributed, to whom they are distributed, when, and how beneficiaries can use their inheritances or donations (within reason).
A Will is also key in determining who will be the guardians of your minor children (under 18) in the event of your death. Without naming their guardians, your children might end up in a household that can’t support their educational needs and living expenses.
If you die without a Will, your estate will be processed and administered as Intestate and it will be distributed according to the laws of succession. This means your estate could be broken up and distributed to people with whom you no longer have any relationship.
When drafting your Will, you’ll need to select an executor. This person is responsible for all administration when it comes to processing your estate upon your death.
Submitting documents to SARS, sorting out your death certificate, and dealing with the requirements of the courts is the responsibility of your executor. A family member can be appointed, but it’s a challenging task and it might serve you and your loved ones better if you opt to let your bank serve as executor for a minimal fee.
Any person aged 16 or over can create a Will. For the Will to be legal and valid, it needs to meet the following conditions, according to the Wills Act of 1953:
- You must be mentally capable of “appreciating the nature and effect” of your action
- You, the testator, needs to sign the end of the Will
- If the document consists of more than one page, each page must be signed
- Two competent witnesses need to be present when you sign
- The witnesses must also sign the document in your presence and each other’s presence
- The witnesses cannot be someone who will inherit from the estate
Making a mark on your Will is considered as valid as a signature. However, if you are unable to sign or make a mark, because of a physical disability, another person can sign for you in your presence and under your direction.
Numerous variables can influence whether your Will is deemed valid or not.
DIY Wills, in particular, are more likely to be declared invalid, according to legal experts. If you’re downloading a template for a Will from the Internet, for example, you will have to ensure that it is in line with South African law.
Here are a few factors that can make your Will invalid:
- Ensure that the document has been signed by you, the testator: The testator/testatrix is the person whose wishes are contained in the Will. Your Will must be signed on each page and at the end of the document to ensure its legality and validity.
- Don’t select witnesses who are also listed as beneficiaries: Anyone who writes a Will or who witnesses a Will or helps you sign a Will is disqualified from receiving any benefit from that Will, including the spouse of the deceased. So, it is important to select witnesses who are not beneficiaries or potential beneficiaries. By the same token, anyone who witnesses a Will can’t be appointed as your estate executor.
- Don’t make changes to your Will without having those changes witnessed You may, from time to time, want to make certain amendments to your Will by deleting, adding or amending words or phrases. However, a more careful approach would be to either draft an appendix to your Will or to prepare a fresh Will. If amendments are made, stringent formalities must be complied with to ensure that these alterations are valid and will be given effect – such as having all amendments or changes witnessed. It’s reported that numerous Wills are declared invalid because they lack compliance with legal formalities.
It’s recommended that your Will is reviewed annually. If you’re acquiring assets regularly, it’s advised that you update your Will every six months. It’s important to keep your Will up to date and to remember to revoke previous versions. If you have more than one Will in existence, your estate dispersal can be disputed by anyone with reasonable cause to do so.
Ideally, you should review your Will if you:
- Experience a change in assets
- Want to change beneficiaries
- Have children (or more children)
- Undergo a divorce
- Would like to change your executor
Your Will is one of the most important documents you will compile, and it needs to be stored in a safe and easily-accessible place so that it can be found should you pass away.
Your bank is a safe place to store your Will at a minimum fee. You can keep a copy of it, but it’s important that the original is locked away in a safe or stored in the Cloud.
Professional Estate Planning advice is a crucial aspect of managing your estate as it helps to ensure that it will be administered smoothly and efficiently.
A professional can assist you in nominating a trusted executor, appointing heirs of your choice and even nominating guardians for your minor children in your Will. Professional advisors can also assist you with setting up trusts and administering your estate so that it’s done legally.