“A man who dies without a will has lawyers for his heirs” (Anon)
It’s natural not to want to make plans for our own mortality, but we owe it to ourselves and our loved ones to do exactly that, and to do it without delay. Why?
- Sooner or later we all die. No one knows exactly when.
- If you don’t make a will you forfeit your right (and duty) to ensure that your loved ones are properly catered for after your death.
- A professionally-drawn will also greatly reduce the risk of your grieving family having to deal with uncertainty as to your wishes, bitter infighting and expensive litigation.
What happens if you don’t leave a valid will?
If you leave no valid will when you die, our “law of intestacy” applies, with the following consequences –
- Your assets are distributed according to law, not according to your wishes. That could leave your family very vulnerable – see below.
- Your deceased estate is administered by an executor in whose appointment you have had no say. Not ideal – rather protect your loved ones by choosing in your will an executor you can trust to act with integrity and speed.
- Equally, you have no say in who is to be appointed guardian of your minor children, nor trustee of a trust to protect their inheritances (particularly important if you are the last-surviving parent).
- Your childrens’ inheritances will sit in the statutory Guardians Fund until they turn 18 – very much last prize considering past allegations of fraud, corruption and chaotic administration in the Fund.
Who gets what without a will?
Note: The persistent myth that the state will grab all your worldly wealth if you die intestate isn’t true except where you leave absolutely no blood relations behind. If you’re in that unlikely situation you may want to skip down now to the “A final thought – leave the world a better place” section below.
Where you are survived by at least one relative, your net assets (everything you own, less your debts and the costs of winding up your estate) are divided up between your heirs in an order of preference (a) dictated by law and (b) dependent on how you are related to your heirs.
Firstly, if your spouse and/or your descendants (children, grandchildren etc) survive you, they inherit everything according to set rules (see the “Beware: You could leave your spouse struggling to survive” section below for more).
Things get more complicated if you leave behind neither spouse nor descendants. Your parents, brothers/sisters and other relations all potentially have a look-in. If you’re interested in the details, the DOJ (Department of Justice and Constitutional Development) provides a full breakdown (with some useful practical examples) here.
The article also covers specifics applying to polygamous marriages, marriages in community of property, adopted and illegitimate children – but as always there is no substitute for proper legal advice on your specific situation.
Beware: You could leave your spouse struggling to survive
If you find it difficult to stop procrastinating on making a will, here’s a thought that may help.
Without a will, if your spouse survives you together with children (or other descendants), he or she will, regardless of age or circumstances, inherit only the greater of R250,000 or a “child’s share”. In a nutshell, your spouse will have to split your estate with your descendants and you could be sentencing him or her to a life of financial hardship, all for want of a simple will.
Similarly you may want to make special provision for any of your descendants who are particularly vulnerable – perhaps unable to fend for themselves through illness or handicap.
It boils down to this – make your will now so that it is you who decides who gets what in your particular family circumstances.
A final thought – leave the world a better place
A will isn’t just an essential step in securing your family’s future; it also gives you the freedom to support your favourite good cause with a bequest. Many of our most worthy charities rely heavily on bequests, and you really will be leaving the world a better place for your generosity.
As a bonus, with charitable bequests the Taxman comes to the party, and your heirs could benefit from substantial estate duty and capital gains tax breaks.
It’s easy – choose your charity, decide on the type and amount of legacy you want to leave, and have your lawyer include it in your will.
For more information and professional legal advice, contact Goldberg & de Villiers Inc on 041 501 9800.