ESTATE PLANNING AND WILLS
A last will and testament is a legal document that sets out the last wishes of the testator/ testatrix (individual that is stating their last wishes) with regards to their estate (assets and liabilities).
IMPORTANCE OF HAVING A VALID, UPDATED WILL
A will indicated who the beneficiaries and executor of your estate should be once you pass away. It will also advise who you wish to be the guardian of your children should you pass away whilst they are still minors. If you do not have have a valid will, your estate will be distributed in terms of intestate succession, which my not be in line with your wishes. It is therefore important to ensure that you have an updated will with your latest wishes which may be influenced by your current financial or family situation.
IF YOU PASS AWAY WITHOUT A VALID WILL IN PLACE:
Your estate will be distributed in terms of intestate succession, therefore the beneficiaries that will inherit may not be the beneficiaries that you wish to inherit from your estate.
Should you have minor children, the Master of the High Court will appoint a curator to take care of and/or administer the property of your minor children and their inheritance will go to the Guardian's Fund. A guardian for your minor children will be appointed, whom may be different from the person you would have nominated.
The Master of the High Court will appoint an Executor based on closest bloodline surviving family member/s, however, this may not be the same person you would have nominated and appointed based on competency and trustworthiness.
DO I NEED AN ATTORNEY TO DRAFT MY WILL?
No you do not require an attorney, however, it is important to have a professional with the necessary knowledge and expertise to draft your Will.
The will must contain the true intentions of the Testator/ Testatrix and meet legal requirements for it to be regarded as a valid Will.
The following documentation is required when drafting a Will:
1. Name and Identification details of the individual you wish to nominate as your executor (preferably a copy of their ID Document);
2. The name and identity number of your spouse;
3. A copy of your marriage certificate and Ante-Nuptial Contract (if applicable);
4. A copy of your divorce order and settlement agreement (if applicable);
5. The full names and identity numbers of your children (including adopted and stepchildren) you wish to benefit from your estate;
6. The full names and identity number of any grandchildren you wish to be included as beneficiaries of your estate;
7. The name and contact details of a guardian you wish to nominate to care for your minor children;
8. Details of the assets you wish to leave to specific beneficiaries, including any donations you wish to make to any institutions;
9. Details of any other party or institution you wish to benefit from your estate;
10. Copies of the title deeds of any immovable property in South Africa and details of the mortgage bond (if applicable);
11. Copies of insurance policies, such as endowment policies, life policies (without names beneficiaries), credit life policies, etc..;
12. A list of all liabilities.
CAN I SET ANY CONIDITIONS IN MY WILL?
In a will, certain conditions can be set, however one cannot "rule from the grave". Your will can provide conditions as long as they are not illegal and contrary to good morals of society.
It can be directed in your will, what age you wish for your children to receive their inheritance. In fact, a will can state that your children should receive their inheritance at various 'intervals', therefore your will could state that your children receive a portion of their inheritance at 18 years old and the remainder at the age of 30. The ages mentioned are not set in stone and therefore the testator/testatrix is free to specify the age, taking legal capacity into consideration.
To be able to facilitate the scenario mentioned above, the will would need to set up a testamentary trust, which by the name suggests, will be formed upon your death. In the will, you will need to provide a name of the trust, particulars of the trustees and the terms of the trust.
TRUSTS
A trust should be included in your will if your dependents are unable to make rational decisions with their inheritance for various reasons, be it lack of legal capacity or they are financially dependent on you.
Joseph Attorneys can assist with drafting a trust deed when we draft your Will.
When you pass away the testamentary trust can own property, receive donations and inherit money from your estate. The age that the beneficiaries are able to claim their benefits from the trust will be set out in the trust deed annexed to your Will.
Two types of Trusts:
1. Inter-Vivos Trust which is a trust created during one's lifetime for the benefit of selected beneficiaries; and
2. Testamentary Trust which is a trust created in a will, it will come into effect once the testator/testatrix passes away. It is created for the benefit of the heirs.
Joseph Attorneys can assist with the creation and management of a trust. For assistance, please book a consult by calling us on 066 450 5996 or emailing us on admin@jjattorneys.online