Frequently asked questions on Wills in South Africa
When a loved one dies without a Will, the repercussions for the family can be devastating.
Too many people don’t consider the importance of having a Will in place and assume everything they’ve earned over their lifetime will automatically be left to the ‘obvious’, intended beneficiaries when they pass away. But that’s not always the case.
If you pass away without leaving a Valid Will, legislation will determine how your assets should be distributed.
Crafting a 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 and who will take care of your minor children when you are no longer there. This is why a Will is one of the most important documents you will ever craft in your life.
Wills FAQs
Benefits of drafting a Will
The risks of writing your own Will
Why do I need a 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.
What happens if I die without a Will?
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.
Who and what is the role of the executor?
The executor is nominated in your Will, and appointed by the Master of the High Court when you pass away. This person is responsible for all administration when it comes to processing your estate upon your death.
Anyone who 18 years or older can be nominated as an executor, however, the Master of the High Court will only issue the Letter of Executorship if the nominated executor is assisted by an executor who has experience in the administration of deceased estates.
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.
The role of the executor is to administer your estate in accordance with the contents of your Will, to settle all your debts, and to distribute your assets.
The Administration of Estates Act governs the administration of deceased estates.
What makes a Will valid?
Any person aged 16 or over can create a Will.
All Wills must be in writing and can be handwritten, typed or printed. 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. It can also be signed using a thumbprint or a mark, provided that it is attested by a Commissioner of Oaths. It should be dated on the last page.
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.
Who is competent to be a witness?
Anyone who is 14 years or older can be a witness. Note that this person needs to be considered competent to give evidence in court at the time they act as a witness to your Will.
Beneficiaries of a Will should not act as witnesses. While there might be some exceptions, in general, if beneficiaries act as a witnesses they can be disqualified from receiving any benefits of the Will.
What can make a Will invalid?
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.
How often should I review my Will?
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
Reviewing your Will after a divorce
If you pass away within 3 months of your divorce and your spouse or partner is still named as a beneficiary, they will still benefit from your Will.
What happens I do not have enough funds in my estate to settle all the debts?
Your executor may be forced to sell off your assets, which may be to the detriment of your beneficiaries. It is important that proper estate planning be done when drawing up a Will to ensure that all your debts are settled when you pass away.
Where should I keep my Will?
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.
The Master of the High Court only accepts original signed Wills when a deceased estate is reported to him.
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.
Should Standard Bank be nominated as an executor or co-executor in your Will, then your signed Will can be stored in our storage facility at an annual fee.
Do I need a professional to help me draft my Will?
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.
Benefits of drafting a Will
1. Wills limit family disputes
- A clear, well-written Will can ensure that family arguments over your estate are avoided.
- In rare cases, the courts may allow a Will to be contested, but there must be a reason to believe that the Will is not valid; for example, if the person who wrote the Will was not of sound mind or unduly influenced by a third party.
2. Wills clearly state preferences
- A Will can outline how you would like certain assets to be used as well as indicate who will receive what from your estate.
3. Children’s guardians are named in Wills
- Unless you name in your Will who you want to take care of your children in the event of your passing, the State will determine who will have guardianship.
- The State can choose somebody you would have chosen yourself, or they may choose a third party that you may not have approved of.
4. You can provide for heirs with special needs
- You may pass away when your beneficiaries are too young or immature to manage their inheritance.
- In such cases, a Will can insist on the assets being placed in a trust that can either limit the beneficiaries’ access until they are of a certain age or distribute the money over a period of time.
- Such provisions can also be tailored to care for elderly relatives or those with special needs.
The risks of writing your own Will
Though you can find hundreds of templates for Wills on the internet, drawing up a Will without professional help can have serious consequences:
- You could write instructions that are unclear and can’t be carried out
- You could forget to insert vital clauses, such as revoking an earlier Will
- You could omit to include vital information, because you don’t have the benefit of an attorney, certified financial planner or fiduciary specialist
- You could make the mistake of thinking that a software package or internet document asks all the same questions that a professional would ask
- You may not have the correct number of witnesses, or it could be incorrectly signed
- You may not have the expertise required to correctly set up Trusts and other mechanisms
- You may not have the skills or experience to understand what taxes are triggered by death duties, how they are administered and when they become payable
Terms and conditions apply.
Disclaimer: This article is for information purposes only and does not constitute financial, tax or investment advice. Readers are strongly encouraged to seek financial or legal advice before making any decisions based on the content.
Standard Bank, its subsidiaries or holding company, any subsidiary of the holding company and all of its subsidiaries, make no warranties or representations (implied or expressed) as to the accuracy, completeness, or suitability of the content of this article. The use of the article and any reliance on the content is at the reader’s risk.
Related articles and media
