What you need to know!
It is advisable to consult an attorney to draw up your Will and it is recommended that your attorney be nominated as the executor or co-executor of your estate in your Will so you can rest assured that a professional will be winding up your estate on your death.
Your attorney:
- Will advise you on any potential problem which may arise in your deceased estate after your death.
- Will deal with any legal issues that might be encountered.
- Has the necessary knowledge and expertise to ensure that your Will is drawn in accordance with your instructions.
- Will ensure that your Will is properly executed and is valid and binding in terms of the Wills Act.
What happens to my estate and assets after I die?
The best way to ensure that after your death your assets are distributed according to your wishes is for you to draw up a Will while you are still competent to do so. This gives you the opportunity to appoint an executor to deal with your assets and carry out your wishes. If you die without a valid Will, your family might suffer inconvenience and even severe hardship.
What if I do not leave a valid Will?
Your assets (your estate) will be dealt with in accordance with the Intestate Succession Act, 1987. The estate will, in such circumstances, devolve upon the surviving spouse, if any, or the surviving spouse and children of the deceased and even grandchildren (where a child has predeceased the deceased leaving children). Where there are no descendants, the parents will inherit and in their absence, the brothers and sisters will inherit. These rules cannot be changed except by your valid Will.
Who can be appointed as executor?
It is advisable that your attorney be appointed as executor or co-executor together with your next-of-kin or close friend as this will ensure that they together will:
- Be familiar with the directions contained in your Will.
- Know where your assets are.
- Have general information of your family affairs.
- Be in a position to wind-up your estate and carry out transfer of any fixed property and
- Have specialized legal knowledge of the administration process.
What should be contained in my Will?
Your Will should include:
- Named executor, including, preferably, your attorney and possibly a 'default' executor should your named executor not survive you or accept the appointment.
- Your wishes as to:
- Any special legacies either money or assets you wish to leave to specific persons, charities or other organisations.
- What is to happen with the balance (residue) of your estate after taking account of legacies.
Estate Planning and Estate Duty
Your attorney can also advise you on estate planning. Estate duty is currently (2014) charged on the dutiable amount of your estate at a flat rate of 20% after deducting a primary abatement of R3.5 million. Bequests to a surviving spouse and charities are free of estate duty.
Signature of Wills:
It is imperative that your Will be properly signed and witnessed otherwise it will be invalid. Your attorney will advise you of the legal requirements for proper signature and validity of your Will.
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