A self help guide on putting together your last will and testament
08 Feb 2021
Making a will
Death is inevitable, therefore it’s wise to plan ahead by having a will to ensure that your last wishes are carried out and your estate is distributed accordingly.
Every person has an estate consisting of all money and property owned and registered in their name. What happens to one’s estate upon death, will depend on whether the person has made their wishes known in a will, failing which, the deceased estate will have to be dissolved or ‘wound up’ by the Master of the High Court in terms of the Administration of Estates Act and the Intestate Succession Act.
Why have a will
- Dying without a will leaves your assets in the hands of an Executor not of your choice but of the Master.
- Dying intestate (without a will) also creates uncertainty regarding any children’s’ guardianship, and if there are custody battles, or a lack of potential guardians, the State is then responsible for deciding where any child should be placed.
- Any inheritance will be distributed to beneficiaries in terms of the Intestate Succession Act and not your personal wishes which could lead to a long, drawn out legal process and it also creates additional stress for the surviving family members impacted.
- A minor’s inheritance will be placed in the Master’s Guardians Fund until he/she attains majority (18 years).
Value of estates
- If the value of the estate exceeds R 250 000 (current), letters of executorship (LOE) must be issued by the Master and the full process prescribed by the Administration of Estates Act must be followed.
- If the value of the estate is less than R 250 000, the Master may instead of a LOE, issue letters of authority (LOA) in terms of section 18(3) of Administration of Estates Act meaning the full process prescribed by the Administration of Estates Act will not have to be followed.
- Members of the public may approach the Magistrates offices for assistance. The Court however will only be able to act as a service point in the following instances, namely:
- The deceased died intestate;
- The value of the estate is not more than R125 000; and
- The estate is not insolvent (liabilities exceed the assets), and
- All the beneficiaries are majors or minors are assisted by a legal guardian and the cash assets in the estate are worth R20 000 or less.
What is an executor
- An Executor is the person appointed by you or the Master of the High Court to carry out your wishes in terms of the Wills Act or the Intestate Succession Act should you die without one.
- He or she must make sure that your property and assets are divided according to your wishes or the Act.
- The Executor has to settle your outstanding debts and distribute or invest the remainder of the estate as set out in your will.
Who can make a will
- Any person of 16 years and over but who is mentally capable to do so.
- The person in whose name the will is made out is referred to as the Testator (male) or Testatrix (female).
Who can be a witness to a will
- Any person 14 years and over but who is mentally capable to do so.
- A beneficiary to a will should not sign as a witness, because he/she may be disqualified from receiving any benefit from that will.
What makes a will valid
- It must be in writing (by hand, typed or printed)
- The Testator/Testatrix must sign the will on the last page. The signature must be made in the presence of two or more competent witnesses.
- The witnesses must attest and sign the will in the presence of the Testator/Testatrix and of each other.
- If the will consists of more than one page, each page must be initialled by the Testator/Testatrix and witnesses.
Amending a will
Amendments must comply with the same requirements as noted above and if the Testator/Testatrix cannot write, then a Commissioner of Oaths must certify that he/she has satisfied himself/herself as to the identity of the Testator/Testatrix.
How does a divorce affect a will
- An inheritance (also called bequest) to your divorced spouse in your will, may not necessarily fall away after a divorce.
- In terms of the Wills Act stipulates that, a bequest to a divorced spouse will be deemed revoked if the Testator/Testatrix dies within 3 months of the divorce, failing which, the deemed revocation rule will fall away, and the divorced spouse will benefit as indicated in the last will and testament.
Who is disqualified from inheriting:
- A person or his/her spouse who writes a will or any part thereof on behalf of the Testator/Testatrix;
- A person or his/her spouse who signs the will on instruction of the Testator/Testatrix or as a witness;
- Any beneficiary where the deceased’s death was as a result of their direct/indirect actions.
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Article sourced from Legal&Tax.
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