NEWS

Putting a ring on it? Protect the interests of your loved ones with a properly drawn-up will

Thought leadership article by Dawie Roux, fiduciary consultant at Legatus Trust (Media Release: 20141112)


It’s wedding season with many a starry-eyed couple promising each other eternal love and togetherness in a ceremony planned to the minutest detail. Ironically, other important life details – like the drawing up of a will – may be furthest from their minds.

Many young people think a will is only for the rich, the elderly, property owners or couples with children. Nothing could be further from the truth, of course.

Legatus Trust, a long-standing, well respected authority on the drafting of wills and rendering fiduciary services throughout South Africa, understands that when faced with the idea of drafting a will, many people feel somewhat powerless and uninformed.

This is why it is so important to call in the services of qualified professionals to assist with drawing up a plan that will inform your new spouse, parents, partner and other loved ones of what to do in the case of your death, even before you tie the knot.
 
Instead of thinking of a will as something morbid that can be dealt with later, it is much better to think of it as a considerate gift to your loved ones. A gift that protects their interests, without which your next of kin may spend months sorting out your estate, and without adding to their distress the uncertainty of what they think your last wishes might have been. There are few things worse than having to deal with the daunting and complex task of winding up a deceased estate while mourning the loss of a loved one.
 
If you already had a will as a single person, it likely states that your estate devolves to parents and/or siblings. This needs to be reviewed and adapted soonest to include your spouse and new circumstances or he/she could be left with empty hands.
 
Your marriage contract, be it an ante-nuptial contract with or without accrual, or in or out of community of property, brings about immediate changes that should be covered in your will with the help of a qualified professional. Not only will it have an effect on who will inherit from you, but there may be other important aspects like a wedding reception that still needs paying off, debt on a new car or house you bought to start your new life together. How will these debts be covered in the event of your death?
 
Very often marriages nowadays include minor children from previous relationships. Who will become the guardian of such a child should you not be around any longer? Having a will in place means you can make suggestions about who should take care of your offspring, although the final decision always remains with the court.
 
Your will is the only document you will ever sign stipulating what you want to happen to your assets after death. In fact, it is one of the most useful documents you might ever sign. To sum up, a will puts you in a position where you can:
 

• Provide for assets to be safeguarded for heirs
• Arrange for your assets to be managed by a competent person on behalf of minor beneficiaries until such time as they are old enough to deal with the assets themselves
• Request whether to be buried or cremated
• Ensure that family heirlooms remain in the family
• To make provision for loved ones with special needs
• Ensure the cost effective administration of your estate
• Impose certain special conditions to apply to your bequests
• Plan to minimise any tax liability

Without a will the state will make those decisions on your behalf according to the law of intestate succession. In short this means that an executor will be appointed by the master of the high court, your assets will be divided between y our spouse and children – or other blood relatives – according to the intestate act, and the inheritance of your minor children will be placed under the control of the Guardian’s Fund. Should you have a common law spouse, the law of intestate succession may not recognise this unless a will specifies otherwise.

Lastly, your will should at least cover four areas:
 
1.     Who will inherit your property?
2.     Who will serve as guardian to care for minor children?
3.     Who will manage the property you leave to minor children?
4.     Who will serve as executor – the person who will carry out your wishes – of your will?

Once your will has been drawn up and duly signed, it is wise to keep an originally signed copy yourself and another one at the offices of your testamentary advisor, and to inform family and friends where to find copies of your will should it become necessary.