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WHERE THERE’S A WILL... Having a valid, up-to-date will is essential to ensure that your loved ones are catered for according to your wishes if you were to die suddenly. A legal expert answers some common questions about wills. WHEN a loved one passes away it can be traumatic for the remaining family, especially if the dead person’s financial affairs are not in order. With over 80 000 Covid-related deaths in South Africa reported by the end of August, this situation is more of a reality than many would like to believe. Although a will template can be downloaded for free or purchased at a local stationer, Tamasen Maasdorp from boutique law firm Reynolds Attorneys says that having a will drawn up by an attorney is worth the expense. An attorney will ensure that the will is correctly worded to ensure that your wishes are fully honoured. Maasdorp answers the following common questions about wills and estates. What happens if I don’t have a will? If you don’t have a valid will when you die, your estate will be settled according to the Intestate Succession Act. Your assets will be divided among your children, spouse and parents according to a set formula, in order of preference and on an equitable basis. Your spouse comes first, followed by your children, parents and siblings. “Dying intestate can cause all manner of issues, as
there are often questions about who should inherit what from the estate. A will cuts through this confusion and is clear on who the beneficiaries are and what percentage of the estate, after duties apply, they are eligible for,” Maasdorp says. If my spouse and I die at the same time, how will my children be looked after? Guardianship is another key area to consider in your will. This is a legal arrangement made with a trusted friend or family member to care for your children should you and your spouse die before your children reach adulthood. In certain circumstances, an attorney may go as far as advising that you have a separate will specifically to deal with guardianship. The guardian would be eligible to be paid for managing your childrens’ inheritance. This needs to be set out in your will, or they will be paid in accordance with the tariff set by the Master of the High Court. “If no guardian has been appointed, all funds left to your children will be paid over into the governmentmanaged Guardian’s Fund and managed by the state. This is something you want to avoid, so it is key to include your designated
guardian or guardians in your will (you can have more than one),” Maasdorp says. What is a trust and when should I use one? There are two main types of trusts: intervivos (or “living”) trusts and mortis causa (or “testamentary”) trusts. If you own a company or a residential or commercial property, it can be placed in a living trust – a trust that you set up in your lifetime. This is often used to protect assets from liquidation or sequestration during your life. The trust is not subject to estate duty, so it is a good vehicle to use if you have assets outside of your personal estate. Testamentary trusts (a trust created after your death to deal with assets in your estate) are commonly used in South Africa for estate planning. You establish the trust in your will, and the will becomes the trust deed. “This is often done when children are still minors and they could inherit, but instead the funds are only made available when they are older. It’s a way of protecting your legacy from their youth, as the more mature your children become, the more likely they will preserve their inheritance,” Maasdorp says.
