A properly prepared Will allows you to direct, prior to your death, what must happen to your assets after your death. You decide who will distribute your assets and to whom they are to be distributed.
Because your Will becomes final on your death, it is one of the most important documents you will ever sign.
The law does not compel one to make a Will, but anyone of sound mind older than 16 years may do so. We strongly encourage everyone to make a will.
If you do not have a will
If you die without leaving a Will your estate will be dealt with under the Laws of Intestate Succession and the following problems may arise:
- your assets will not necessarily be left to the person or persons of your choice
- an executor must be nominated which may cause a delay as the intestate heirs have to consent to such appointment
- the nominated executor may be someone you would not have chosen.
- the distribution of assets may cause conflict among members of your family
What could happen if a breadwinner dies without a will?
If a man, who had been married out of community of property with 2 minor children, dies without having made a will (intestate), his death could cause hardship for his wife and children.
Assuming his estate was valued at R400 000,00, under the Laws of Intestate Succession his wife would receive R125 000,00 or a child's share, whichever is the greater. In this case the wife and each of the minor children would receive R133 333,33.
The money for the minors will be placed in the Guardian's Fund at the Master's office until they reach the age of 21 years. As a result the wife would have to survive on one-third of what the deceased might have intended.
What happens in the case of a divorce?
When a person dies within 3 months after a divorce has been granted, any bequest to the divorced spouse under a will signed before the divorce will fall away, unless it is clear from the Will that this was not the intention. However should the person not sign a new Will after the 3 month period, then the original Will becomes valid again.
When must your will be updated
Whenever your circumstances change, your Will should be reviewed. Change of circumstances would include:
- purchase of a property
- birth of a child/grandchild
- death of a spouse, an heir or executor nominated in your will
- increase in the value of your estate
- changes in tax legislation
Minor changes may be done by way of a Codicil.
Further consideration must be given for changes to beneficiary nominations of Provident or Pension Funds and Insurance Policies. Beneficiary nominations cannot be governed by your Will. Benefits under Provident and Pension Funds do not form part of your estate.
Points to consider:
You should consider the following points when discussing your will with your legal advisor:
Special Bequests or Legacies
A bequest or legacy is a specific item or an amount of money which is left to a specific person or cause, eg jewellery to a daughter, cash to a grandchild or furniture to an old age home. Any item must be clearly described.
An heir is the person or organisation inheriting the whole or remainder of the estate after payment of bequests and expenses. Assets left to a 'spouse' are exempt from estate duty.
Should you have minor children/grandchildren you may consider creating a trust in your Will. A trustee will administer the assets awarded to the trust in terms of the Will for the benefit of the beneficiary. Any monies awarded to a minor in excess of R5 000,00 will be paid to the Guardian's Fund until the beneficiary turns 21 years, unless a Trust is created.
A trust may also be created for the benefit of your spouse, handicapped child, etc to pay them the income generated and which terminates on their death. The remaining capital would be paid to the nominated beneficiary, eg your children.
Should your spouse predecease you a guardian must be appointed to take care of any minor children.
The executor is the person you nominate to take control of your assets and to administer and distribute your estate in terms of your Will. In view of the specialised knowledge required, a professional person should be nominated and, if necessary, together with a family member as co-executor. The Master requires the services of a professional to administer an estate.
An executor is not a trustee although the same person may be nominated as both. The trustee will administer the Trust once the estate administration has been finalised and is governed by the powers given to them as described by you in terms of your Will. The trustee must keep accurate records of all transactions and account to the beneficiaries.
Estate Duty and Capital Gains Tax (CGT)
Estate Duty is payable at the rate of 20% on the nett value of the deceased's assets exceeding R1,5million. An annual exclusion of R50 000,00, in respect of CGT, is allowed in the event of death.
Why choose JGS to prepare your will?
Joubert Galpin Searle Inc (JGS) is a long established specialised firm of attorneys with a wide range of expertise in the various fields required to deal with an estate efficiently, and for your benefit.
We offer our clients a professional, committed and personal approach to our services through caring and dedication.
We have set out below some of the more important considerations to be taken into account when settling your personal affairs.
When nominating your executor or trustee you may choose whoever you wish. However, we recommend a professional should be nominated either alone or jointly with a family member. The Master will insist on a professional assisting with the administration of your estate. Considerations to be taken into account when making a professional appointment are the following:
- your personal association with and confidence in the person or firm
- the knowledge such person has of you and your family so that any decisions can be sensitive to this background
- the experience of the person and the firm in this field
- the administrative and legal skills which are available
- JGS is permanently located in Port Elizabeth and therefore local knowledge and accessibility are easily obtainable
- With over 65 years practice in Port Elizabeth succession is assured and therefore there is no threat of centralisation to another city.