The thought of death can be quite daunting, however it is important to prepare for the inevitable and to ensure that your assets are distributed according to your wishes after you die.
As a 60-plusser, ensuring your family and loved ones are cared for after you’re gone and preserving your legacy becomes extremely important. A crucial step in this process is having an updated and legally valid Last Will and Testament and a good estate plan.
In 2022, the Master of the High Court of South Africa revealed that fewer than 15% of South Africans have a valid Will when they pass away. This statistic is concerning because it means that the majority of South Africans die without a Will, or “intestate,” which leads to their estates being distributed according to the laws of intestate succession. Under these laws, the heirs are predetermined, potentially leaving your assets in the hands of individuals you may not have chosen.
This article will discuss the importance of having a Will and outline steps you can take to protect your interests and ensure your estate is administered according to your wishes.
Estate Planning:
Drafting errors in Wills can lead to invalidity, resulting in unintended consequences for your loved ones after your death. The formalities for the valid execution of a Will are set out in the Wills Act, Act 7 of 1953, and it is vital to ensure your Will complies with the provisions.
Here are some scenarios where seeking legal and financial guidance is recommended for efficient and tax-effective estate planning:
- You are married, either in or out of community of property, or your marriage is governed by the laws of another country or custom;
- You are divorced;
- You are in life partnership, but are not legally married, in which instance it may be difficult to inherit from your partner after his/her death;
- You own a business;
- You have minor children or grandchildren who you would like to inherit (under 18 years old) and you may want to protect their inheritance and access to the inheritance until they reach a certain age;
- You have handicapped or dependents with special needs and medical or other care;
- You possess assets overseas; and
- You have pets that need to be cared for, after your death.
Preventing Disputes Among Heirs:
Having a Will in place helps to avoid potential conflicts and confusion regarding the distribution of assets and the execution of your estate. By carefully considering and documenting your decisions regarding inheritance and other important matters, you can provide clarity and peace of mind for your loved ones. A well-thought-out Will not only minimizes the likelihood of disagreements but also ensures that your legacy is managed according to your intentions.
Ensuring your wishes are fulfilled:
It would be useful for you to get in contact with an expert who can guide you through the process and explain all the options at your avail. If you already have a Will in place it is also important to note that if any circumstances change, your Will should change accordingly.
The proper structure, wording, signing and other legal requirements around a Will are all points a professional specialist knows to guide someone to ensure that their last wishes will be legally executable.
Case Study 1:
John and Mary, lived together as partners for 20 years but were never married. Their home was registered in John’s name. Sadly, John passed away unexpectedly, leaving Mary devastated.
Intestate Succession:
Since John did not leave a Will, his estate would be distributed according to the rules of intestate succession as per the Intestate Succession Act 81 of 1987. According to this Act, the estate would first be used to settle any debts and liabilities then the remaining estate would be distributed among his children.
Surviving Partner’s Rights:
Mary, as the surviving partner, would have much difficulty inheriting from John’s estate. John and Mary did not have a legally recognized partnership or cohabitation agreement in place. Without such an agreement or a Will naming her as a beneficiary, Mary would face many challenges in inheriting John’s assets under intestate succession laws. Although the case of Bwanya v The Master of the High Court 2021 (1) SA 138 (WCC), recognises the right of heterosexual life partners to inherit from a life partner’s estate, it may still be difficult to prove that a life partnership existed in the absence of a life partnership agreement. In addition, the fact that no Will was left making provision for the surviving life partner, may also present a host of challenges.
Challenges Faced by the Surviving Partner:
Mary may face challenges in staying in the house they shared as it was owned by John. If John’s children want her to leave the family home and potentially render her homeless, this could put Mary in a difficult position. All of this could have been avoided if John had a Will in place and either granted her a lifelong right to live in the house until her death, or if he bequeathed the home to her.
Significance of the case study
This case study highlights the importance of regularly reviewing and updating your Will and estate planning documents to ensure that they reflect the current wishes and circumstances of the individual and their family members.
Needing Assistance:
If you need assistance with establishing or reviewing and updating your Will, please reach out to our team, which specializes in estate planning and we will help you in ensuring that your final wishes are honored and advise on the best way in which you can structure the administration of your estate after your death.
FOR ENQUIRIES:
Meyer de Waal
MDW INC meyer@mdwinc.co.za
021 461 0065 & 083 653 6975
Daniela Papa
021 461 0065 & 083 783 8494
Devedine Armstrong
devedine@mdwinc.co.za
021 461 0065 & 076 902 4027
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*Please note: MDW INC offers a maximum of 5 free basic wills per month to pensioners.
Should a will be complex in nature, MDW INC has the right to discuss a fee structure being put in place with the person concerned.
