No one likes to contemplate their own death, and you might be tempted to put off drawing a valid will that will take care of your estate and your loved ones. According to the Master of the High Court, in South Africa the percentage of working South Africans without a legally binding will is around 70% to 75%, and has been hovering there for some time. The problem with avoiding drawing up a valid will, is that if you die without a will, your estate will devolve according to the Intestate Succession Act, 1987 (Act 81 of 1987). This means that your estate will be divided amongst your surviving spouse, parents or siblings according to a set formula.
All deceased estates will be distributed in terms of the Intestate Succession Act. This means that the beneficiaries in order of preference are:
- The spouse of the deceased
- The descendants of the deceased
- The parents of the deceased (Only if the deceased died without surviving spouse or descendants)
- The siblings of the deceased (Only if one or both parents are predeceased)The Intestate Succession Act should be read in such a way that it can accommodate cases where the deceased was a husband in polygamous customary union:
- When the deceased left only spouses and no descendants, the wives will inherit the estate in equal shares.
- When the deceased left spouses and descendants, the spouses and descendants will inherit the estate in equal shares, but
- Each wife should inherit at least R 250 000
- When the estate is not large enough to allow each wife to inherit
- R250 000, the spouses will inherit the estate in equal shares while the descendants will not receive anything.
In case of a marriage in community of property, one half of the estate belongs to the surviving spouse and, although it forms part of the joint estate, will not devolve according to the rules of Intestate Succession.
To avoid having your estate distributed in terms of the Intestate Succession act, anyone over the age of 16 is free to make a will to determine how his/her estate should devolve upon his/her death.
Look after your loved ones with a valid will
Distribution of assets: A will allows you to specify exactly how you want your assets to be distributed after your death. With a valid will you are not tied to the Intestate Succession act and a valid will that meets all legal requirements ensures your assets and personal possessions are divided up among those individuals you want to benefit from them.
Guardianship of minor children: If you have minor children, a will allows you to designate a guardian to care for them in the event of your death. Without a will, the court will appoint a guardian, without knowing your preferences.
Executor Appointment: A will enables you to appoint an executor of your choice to manage your estate, ensuring your wishes are carried out efficiently and accurately. Without a will, the court will appoint an administrator, who may not be the person you would have chosen.
Avoiding family disputes: A clear and legally binding will can help prevent disputes among family members regarding asset distribution and all aspects of your estate.
Estate planning is essential
Estate planning is the process of arranging your financial affairs in such a way that your estate and the legacy you leave are as large and well-structured as possible. A good estate plan maximises your assets and reduces your estate costs and any tax. Taxes, income tax and capital gains tax can greatly impact the size of your estate, but this can be minimised with careful planning. What’s more, a well-structured estate plan streamlines the entire process of winding up your estate, so your heirs are paid out as quickly as possible.
For expert and confidential assistance with your will and the planning your estate to ensure your loved ones are looked after, according to your wishes, speak to our Estate Planning team today.