An invalid Will can cause additional liability for your Estate and delays in final settlement.
Should a person pass away without having a Will, or a Will which is invalid because there are no or incorrect witnesses, the estate is to be administered in terms of the Intestate Succession Act. This can cause additional liability to the deceased estate amounting to R30 000 or more and the finalisation of the estate could be delayed due to fact that the matter has to be placed on the motion roll of the High Court which can take months.
Keep these details in mind when drafting a will:
Your matrimonial property regime
Determine which matrimonial property regime you are married under. Remember, if you are married in community of property, you and your spouse own the joint estate in equal shares. This means that, when it comes to testation, only 50% of the joint estate is yours to bequeath. If you are married out of community of property with the accrual, bear in mind that the accrual contract continues to apply after your death. This means that your surviving spouse may have a claim against your deceased estate for their share of the accrual to the extent that it is less than yours. This could create liquidity problems in your estate if you intend leaving some or all of your assets to a third party.
A guardian for your minor children
If you have minor children, choosing a suitable guardian for them is a priority, albeit often a difficult and divisive decision to make. When choosing a guardian for your children, give consideration to factors such as their existing relationship with your children, their financial stability, where they live, and also their willingness to take on the responsibility. Most importantly, have the discussion with the proposed guardians before drafting your will.
Choose trustees for your testamentary trust
Also vital for those with minor children is to set up a testamentary trust in your will for the safe custody of any assets intended for your minor children. Choosing appropriate trustees for the trust is an important task as it will be their responsibility to ensure that your wishes are carried out after your death.
Another important decision you need to make is that of choosing an executor. While you may be tempted to appoint a close family member, keep in mind that the job of executor is an administratively intensive and time-consuming one that requires a certain level of financial and legal knowledge. Also bear in mind that family relationships and dynamics change over time, and if you’ve nominated a close family member as executor conflicts of interest may arise which is never ideal.
Your assets and liabilities
Be sure to make a full inventory of your assets and liabilities, including business interests, trusts, jewellery, artwork, immovable property, investments, retirement funds and any valuable moveable property.
If you’re setting up a testamentary trust, be sure to identify exactly which assets you intend bequeathing to the trust. The purpose of a testamentary trust is to house assets that you intend bequeathing to your minor children. Bear in mind that, in terms of our law, minor children lack contractual capacity and are therefore unable to inherit. In the absence of a testamentary trust, any assets bequeathed to your minor children will be administered by the Guardian’s Fund until they are old enough to inherit the assets.
List your heirs
Your heirs are the people who stand to inherit the residue of your estate, which is whatever assets are left after all your debts, the cost of administration, and any legacies or special bequests have been distributed.