A will is one of the most important legal documents a person will ever sign. Yet the majority of South Africans do not have one. If you die without a valid will — known as dying intestate — your estate is distributed according to the Intestate Succession Act, which may not reflect your wishes or provide adequately for your dependants.
What happens if you die without a will?
The Intestate Succession Act distributes your estate in a fixed order: spouse, children, parents, siblings, and so on. This can produce outcomes you would not have chosen — a domestic partner may receive nothing, a specific asset may not go to the person you intended, and the process of winding up the estate without a nominated executor takes longer and costs more.
Who should have a will?
Almost everyone. If you own any assets — property, a vehicle, savings, business interests, retirement annuities — or have dependants, you should have a will. The absence of a will often creates the most problems in modest estates where family members need access to funds quickly.
What must a valid will contain?
Under the Wills Act, a valid will must be in writing, signed at the end by the testator, and witnessed by two competent witnesses who sign in the presence of the testator and each other. A witness who is also a beneficiary under the will forfeits their benefit.
Key decisions your will must address
Executor
Your executor administers your estate after your death. Nominate someone you trust. Executors are entitled to a fee of 3.5% of the gross estate value plus VAT — this can be waived or reduced by agreement.
Guardian for minor children
If you have children under 18, your will should nominate a guardian. Without a nominated guardian, the High Court decides. This is one of the most important decisions parents can make.
Testamentary trust
Where your estate includes assets for minor children, a testamentary trust within the will ensures those assets are managed by a trustee until the children reach an appropriate age. Without this, the Guardian’s Fund administers the money, which is restrictive and slow.
When should you update your will?
Your will should be reviewed after any major life event: marriage (which revokes a prior will in South Africa unless expressly stated otherwise), divorce, the birth of a child, the death of a beneficiary or executor, or a significant change in assets. As a rule, review your will every three to five years.
HvS Attorneys drafts wills, assists with estate planning, and helps families administer deceased estates in Johannesburg. Contact us to get your will in order.
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