A will is one of the most important documents you will ever draw up

It can ensure that your family's financial needs are taken care of when you are no longer able to do so. Having a will is not, however, necessarily a safeguard against problems. You need to review it regularly to make sure that it is still applicable to your personal and financial circumstances. A will that cannot give effect to your intentions can lead to delays, legal disputes and costs, and ultimately the frustration or total failure of your wishes.

Six reasons why everyone who is over 16, owns assets and is of sound mind should have a will

Every person over the age of 16 who owns assets and is mentally able to appreciate the consequences of his/her actions should have a will. Here are six reasons why:

1. Having a will is the only way to ensure that your estate is divided according to your wishes after your death. If you die without a valid will, your estate will be distributed according to the rules of intestate succession, which can be both impractical and inflexible.
2. Married couples often assume that the surviving spouse will inherit the estate if one spouse dies without a will. This is correct if the couple has no children. However, where the deceased has children, the rules of intestate succession provide that the spouse inherits the larger of R250 000 or a child's share of the estate, and the children inherit the rest. A child's share is determined by dividing the monetary value of the estate by the number of children plus one. The spouse will therefore inherit only a portion of the estate and he/she and the children will become co-owners of the assets, which is often impractical.
3. It is a well-known fact that many people in South Africa live together without marrying. There is no automatic protection for parties in such a relationship. While the lawmakers and courts have extended the protection offered by a marriage to parties in these relationships since 1994, heterosexual partners are still not protected when one partner dies without a valid will. They will not be regarded as the spouse for purposes of intestate succession and will therefore inherit nothing from the deceased partner.
4. If there is no will, the Master of the High Court will appoint an executor according to the wishes of the heirs. This process will in all likelihood cause a delay, which could have an impact on the finances of the family. This is because the estate remains frozen until an executor is appointed. If there is no direct family member who can take the appointment, the executor will have to provide security, the cost of which will be a charge against the estate.
5. If you die without a will, the executor is forced to pay a minor heir's inheritance into the Guardian's Fund. Not only will this money earn interest at a rate lower than the prevailing market rate, but the guardian of the minor will have to make application to the Guardian's Fund for money for the maintenance and general welfare of the minor. When the minor turns 18, he/she can claim the balance of the inheritance.
6. A major heir may be handicapped or immature and not capable of handling the inheritance in a responsible manner. If there is no will, the inheritance of such an heir (assuming he/she has not been declared incompetent by a court of law) must be paid to such beneficiary, despite his/her inability to manage it.

Executing a will

Having a will drafted is, of course, just the first step. In order for it to be valid it must be executed (signed).  Some of the rules relating to the execution of wills are:

1. Two competent witnesses must be present when you sign your will and they must sign it in each other's presence. Witnesses must be 14 or older and competent to testify in court.
2. A person who signs the will as a witness, or who writes any part of the will, as well as the spouse of that person at that time, will be disqualified from receiving any benefit from the will.
3. Any amendment made to the will must be signed by the testator and the witnesses.
4. If a person signs his/her will by making a mark (such as a thumbprint or a cross), then a Commissioner of Oaths has to co-sign the will and confirm by means of a certificate on the will that he/has satisfied himself/herself as to the identity of the person and that it is his/her will.

Please contact your relationship manager to schedule an appointment with a fiduciary specialist, who will assist you with drafting or reviewing your will.

DISCLAIMER The Fiduciary Focus Newsletter is intended for general information purposes only and should not be construed as tax, legal or accounting advice. This communication is based on our bona fide interpretation of legislation, rules, regulations and publications. Nedbank Private Wealth provides estate and tax planning advice; however, we do not provide tax, legal or accounting advice and you are requested to consult a professional tax advisor or professional in this regard.