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Use this time for Estate Planning

Use this time for Estate Planning

At present, the bulk of us are confined to our residences until such time as the lockdown (or any extension thereof) is lifted. While inconvenient, it does present the perfect opportunity to get your personal affairs in order, including Estate planning and the preparation of a Will.

Why should you have a Will?

By making a Will, you ensure that your assets are distributed in accordance with your wishes after your death. By exercising this privilege known as freedom of testation, you can make certain that your loved ones will be provided for after your passing.

What happens if you die without a valid Will?

Without a valid Will, your assets will be distributed according to the law of intestate succession, usually to your spouse and/or children. There are common law rules which dictate exactly how your assets are distributed, so you don’t need to worry too much, but there might be some undesirable consequences…

Failing to make a valid Will before your death has the following consequences:

  1. Your assets may not be left to the person or people of your choosing.
  2. Certain family members and other dependants may be left vulnerable.
  3. The Executor who is appointed to administer your Estate may not be somebody you would have chosen to entrust with such an important role.
  4. You have no say as to who is appointed as guardian of your minor children.
  5. You are unable to choose what happens to the inheritances of beneficiaries who are minors. Unless specified to the contrary, their inheritances will be held in the Guardians Fund (administered by the Master of the High Court!) until the beneficiaries reach the age of eighteen. This is concerning in light of the past allegations of fraud, corruption and maladministration of the Fund.
  6. The administration of the Estate can be delayed due to additional formalities and the extended process of nominating and appointing an Executor.
  7. The lack of clear instructions regarding administration and distribution of your Estate can lead to conflict between heirs, which is unpleasant for all involved and further frustrates the administration process.

Why should an attorney draft your Will?

Simply put, Wills which do not comply with the strict legal formalities under South African testamentary law will be considered invalid and will be rejected by the Master of the High Court, leaving your Estate to devolve according to intestate laws.

Attorneys who specialise in Wills and Estates have the necessary knowledge and expertise to prepare a Will which not only conveys your wishes, but also complies with the legal requirements for a valid Will. They will also be able to provide you with information and advice if there is anything you are unsure about.

If you would like us to assist you in drafting, amending, or reviewing your Will, you can contact us telephonically, by email or via our website. Our entire professional team have been working remotely for the past 3 weeks and will continue to do so for the remaining balance of the lockdown.

We are therefore able to assist you with any queries you may have regarding Wills and Estates.

By Frances Everett

Frances’ areas of interest include Commercial Law, Contract law and Property Law. She shows a particular interest in Intellectual Property Law, Competition Law and Consumer Protection Law.