There Are Actually Easier Ways To Set Up A Will That Don’t Involve An Attorney
It’s National Wills Week and it’s safe to say that South Africans simply don’t care about having a will. This is not according to me, but to a statistic by the Master of the High Court that reveals that almost 70% of South Africans don’t have one.
The consequences? Turmoil and disagreements after your death, a situation that no one would want to leave their family in.
“A valid, clear and up to date will helps your family, and the executor of your estate, through what is already a challenging time,” Bryan Nicol, Independent Financial Advisor, tells us.
It states your wishes for how your assets are distributed and how your affairs are to be handled. It’s more than just letting your family know which of your things they can have – it’s also for your family to know what your last wishes are.
Here, we’ll go through the different ways that you can draft your will so that you can find an option that works best for you and finally get it out of the way.
Get an attorney
Nicol tells us that having an attorney draft your will for you is the best option.
“The attorney will need to have a good understanding of what assets and liabilities you have on your name, how you are married, your immediate and extended family and so on,” he explains.
“Once the lawyer understands your estate, they can assist you with how it can all be distributed and how the liabilities will be covered.”
Type it out
While not the most ideal option, you can draft your own will on your computer. But there are certain considerations you need to make when doing this. Nicol explains that you first need to make sure it’s labelled “Last Will And Testament”, state your full name and surname and let it be known that you are of legal age to draft it.
You will also need to make sure that you have addressed all the various elements involved in winding up your estate, including but not limited to, appointing an executor of the estate, naming a guardian for minor children, listing assets and how they’re to be distributed (see bottom of article for a full check-list).
“If the will is physically handwritten, it must be legible as there is no room for doubt or misinterpretation,” Nicol says.
“If you ask someone else to write it on your behalf, the person cannot be nominated as a beneficiary. However, if this is the case, that person will forfeit their share.”
He goes on to say that in both instances (computer drafted and handwritten) the document needs to be signed by the testator (person who makes a will, aka you) as well as two witnesses. It’s also important to remember that the witnesses need to sign in the presence of one another and of the testator and they cannot inherit anything.
Interesting fact: Witnesses don’t have to read or know the contents of the will.
Do it online
There’s almost nothing you can’t do on the internet.
“Online wills often prompt you throughout the process of completing the template. You then download it and sign it,” Nicol says.
“This may be an appropriate route for someone with a very straightforward estate. It works best if you’re single with no dependents and have minimal assets.”
Use a financial institution
Lastly, financial institutions often offer some sort of will drafting service and it’s wise to take advantage of this, especially if you can’t afford an attorney.
“Much like having an attorney draft your will, you will be assisted throughout the process,” Nicol tells us.
“I cannot emphasise enough how important it is to get the drafting of the will right, especially if you have family who depend on you.”
Remember this: Always make sure your nominated executor is aware of your will and knows where to find the original. Store the original safely and make certified copies.
Nicol outlines the most important things to consider when putting your will together:
- Have a list of all your assets and liabilities with market values for each property.
- Know what life policies you have. Then, if appropriate, ensure the intended recipients are nominated as beneficiaries on these policies, as this will influence the Estate Duty that will be payable. Make provisions for any outstanding taxes so that this burden doesn’t fall on your heirs and legatees.
- Have a list of the people you want to inherit from your assets.
- Make it as clear as possible as the law provides for assumptions to be made should this not be the case (e.g. two people inherit the same property from your will).
- Revise it appropriately after major life events (e.g. marriage, the birth of a child), to add any new assets (e.g. property), to remove sold assets, and to ensure beneficiaries inherit as you intend them to.
- Point out whether you want to be buried or cremated and address any other last wishes you may have.
What makes a will null and void:
- It will be void if the testator did not sign as required by law. Sometimes a “mark” by the testator will be accepted, but this comes with its own requirements.
- The testator must be at least 16 years of age to draw up a will as well as be in a sound state of mind. A person needs to be at least 14 years of age to sign as a witness.
- The document needs to be signed by at least two witnesses. If this is not the case, it could be ruled invalid.
- The will becomes invalid if it can be proven that it was drawn up under duress or fraud.
- If it is not dated, it will be void.
“If you die without a will your assets are distributed according to the law of intestate succession. This starts with the testator’s spouse, then children, then parents, and then extends to other family and ends with the government receiving the asset.”