By now I’m sure you would have heard how important it is to have an up to date will. It is one of the first things a financial advisor will cover when you do a financial plan.
In case you need a refresher, below are just a few highlights:
- Justice.gov.za says the following about how your estate will be distributed should you pass away without a will:
“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 [including adopted and illegitimate children] 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).”
Over time, the definition of a spouse has been expanded both formally and in the case of law to include polygamous marriages, same-sex marriages, life partners, etc., but by having a formal will in place, you can save your partner the embarrassment and stress of having to prove their relationship with you to a stranger sitting in a court with no knowledge of your life.
- Dying intestate (without a valid will) will inevitably lead to significant delays in the winding up of your estate, meaning that your loved ones may be destitute without sufficient funding while the executor needs to establish your true financial position before they can make any distributions to your surviving family.
- Since you usually appoint the executor of your estate in your will, The Master of the Court will now have to approve an executor that was nominated by your collective intestate beneficiaries. This means that your intestate beneficiaries need to know and trust each other well enough in order to agree on a nominated person. The executor may be a professional, but the nomination to the Master will still need to come from the beneficiaries.
- Your will is also the document in which you appoint the guardian(s) of your minor children, should you and your spouse pass away at the same time. Family members may assume they know what your wishes would have been, but we strongly recommend that you leave no room for doubt. This is especially true if both your and your spouse’s parents or siblings may feel that they are most capable of doing the job!
It is neither complex nor expensive to do a will. Speak to your financial advisor to point you in the right direction. Other than having an up to date will in place, there are a few other things that you can do to help your family.
A living will is a document in which you state your wishes not to be resuscitated or placed on life support machines in certain medical situations. The legality of a living will is still disputed in South Africa with several cases of doctors overriding a family’s wishes to switch off life support machines. However, if you feel strongly about it, it is the only document that will at least guide a doctor when they need to make a recommendation to your family, and it will release your family from the guilt of deciding to do so if it comes to that.
Make sure they know where to find your will
All that planning means nothing if your will (and living will) is not easily accessible!
Think carefully about who you appoint as executor
Appointing a family member as the executor of your estate may seem logical – they will know and respect your wishes when any part of your will is open for interpretation and it will save costs, but this should not be done without careful consideration. Even if you are sure that there is a family member with the necessary skill and knowledge to do the job and the level-headedness to make important financial decisions on your behalf, we still recommend that you authorise that person to appoint a professional to deal with the formalities. They may do so without your authority in any case, but it will relieve some pressure or feelings of guilt if you discuss this with them when you draft your will.
Talk about it
Discuss the contents of the will with your appointed executor (especially if this is not a professional) in order to give them a sense of your wishes. Do not surprise a family member with this enormous responsibility without their prior knowledge.
If possible, it also helps to discuss the major highlights of your bequests with your family so that there is no infighting or uncertainty among them after you’re gone. As a minimum, tell them who you appointed as executor and why you selected that individual to avoid animosity among them after your passing.
Tell your family how you feel about a burial versus cremation, etc.
Consider organ donation
If you are not a registered donor, your wish to donate your organs may come as a surprise to some family members. It makes sense to avoid any confusion by either formally registering as a donor, or discussing your wishes with your spouse, parents and children at the very least.
Have a file
Whether it is hardcopy or electronic, your family needs access to the following information and documents:
- Will and living will (No, I can’t say that enough!);
- A certified copy, or your original ID;
- A certified copy, or your original passport;
- Birth certificate;
- Marriage certificate and prenuptial agreement;
- Life insurance and funeral policy documents (contracts, beneficiary nomination forms);
- Your last tax return and assessment;
- The contact information of your financial advisor;
- Deed of ownership of all fixed property;
- Your original vehicle registration documents;
- Trust documents if you were the settlor of a trust during your lifetime; and
- Banking details of all accounts that you hold globally.
Lastly, remember that your retirement benefits (retirement annuities, corporate pension and provident funds) are not governed by your will. They are distributed in terms of the Pension Funds Act, which effectively provides guidelines to the trustees of these products on how they should distribute your benefit. They will be guided by your beneficiary nomination forms but will also have to ensure that there are no other dependents that they need to consider. They have a period of 12 months to investigate and make a decision.
The death of a loved one is hard enough without having to deal with the administration of it all. We owe it to our loved ones to be organised!