Is your Last Will and Testament in order?

The future is unpredictable and death happens quickly and unexpectedly. Therefore, it is important to have a Last Will and Testament. This will give you peace of mind and make things easier for your loved ones that are left behind after you have passed away. The simpler your present circumstances are, the less of a complex estate plan you need; however very few peoples’ lives are that simple! This article explores some of the most commonly asked questions regarding Wills and Testaments in South Africa.

  1. Why have a will?
  • You decide how your estate will be distributed
  • If you have minor children, you will be able to nominate a trusted individual to take care of them
  • You decide who will wind up the affairs of your estate
  • You can make bequests to specific people
  • You can make provision for your pets to be taken care of after you pass away
 

2. Who can make a will?
In terms of Section 4 of the Wills Act 7 of 1953 (Hereinafter referred to as “the Act”) any person who is sixteen years or older and at the time of executing a will has the mental capacity to understand and appreciate the nature and effect of executing such a Will, is allowed to do so.

3. How do I execute a will?
It is important to know what you want the content of your will to reflect. Each person’s personal circumstances are unique and therefore Estate Planning and/or drafting of a will needs to suit the needs of each individual. It is advisable to consult an Attorney who can assist you in not only drafting you will, but also to help you plan your entire estate.

4. Formalities of executing a will 
Section 2 of the Act sets out how a will must be executed. The following formalities must be adhered to in order for a Will to be valid:

  • Since 1 January 1954, all wills must be in writing. It can, however, be written by hand, typed or printed. It is however advised that the will be typed and printed.
  • The will must be signed at the end thereof. It can be either signed by the testator personally or by some other person in his presence and by his direction; The signature must be made by the testator personally or the person directed by the testator, together with two competent witnesses at the same time and all in each other’s presence.
  • The two witnesses must be at least fourteen (14) years old at the time of signing as a witness and must at the time of attesting the will be competent to give evidence in a court of law. Also note that the witnesses cannot be your nominated executor, or any person who is going to be inheriting in terms of your will or his/her spouse.
  • If the will consists of more than one page, each page must be signed by the testator or by the person directed by the testator. Although it is not a legal requirement that the two witnesses also sign every page if the will consists of more than one page, it is recommended that the witnesses also sign every page of the will. All parties should sign the will at the same time and all in each other’s presence.
  • If the testator signed the will by making a mark or by directing someone to do so in his presence, a commissioner of oaths must certify that he has satisfied himself as to the identity of the testator and that the will so signed, is the will of the testator, and each page of the will, excluding the page on which his certificate appears, is also signed, anywhere on the page, by the commissioner of oaths who so certifies. The will must be signed by the testator or the person he directed in his presence and by the two witnesses in the presence of the commissioner of oaths. The aforementioned certificate will be made as soon as possible after the will has been so signed.
 

5. Can I change my will after it has been signed?
You can change or revoke your will as often as you like. You can either amend your will by means of a codicil or make an amendment on the actual will whereby you can delete, add or alter something. Making an amendment on the actual will is, however, not recommended. If you elect to make an amendment of the actual will, the amendment must be initialled or signed by the testator and two witnesses; however, it need not be the same two witnesses who witnessed the original will.

6. What will happen if I die without having executed a Will?
When a person passes away and the Original Will cannot be found or if the deceased did not draw up a Will before passing away, the Intestate Succession Act 81 of 1981, will govern how the Estate is to be distributed and also who is eligible to inherit. Due to the fact that each Estate is individual with its own merits, it is difficult to give a general guideline on how an estate will be wound up. Therefore it is best to discuss the matter with an Attorney who will be able to advise and assist you based on the merits of your particular case.

7. Will taxes be avoided if I have a Will?
Estate Duty is a type of Tax payable to SARS when the total value of an Estate is above R3,5million and is calculated at 20% on the amount above R3,5million. This will apply whether there is a Will in place or not. Any Income Tax that is due to SARS by the deceased before he/she passes away will become payable upon death in order for the administrators of the estate to obtain a Tax Compliance Letter. This is also applicable regardless of whether there is a Will or not.

8. Getting a Will done
It is best to have your Will drafted by an Attorney who deals with the administration of deceased estates on a regular basis or specialises in the administration of deceased estates.
This will ensure that the content of the will is executable, and that the content of the will does not have dire consequences. An Attorney will also be able to advise you on alternatives and assist you with estate planning.

9. Where can I store my Will?
A will can be stored anywhere in a safe place as long as it can be accessed upon your death, otherwise, your Estate will be attended to in terms of Intestate Succession Act. A safe place is considered to be a place that is safe from the possibility of fire, water or smoke damage. If you choose to store your Will in a safe at home, make sure that it is not only safe from the above-mentioned hazards, but also that your trusted family members or Attorney are able to access it when it becomes necessary. When your Will is drafted by an Attorney it may also be possible to store the will at their offices.

10. What happens if I move to another Country or if I own assets in another Country?
When moving to another Country while still having assets in South Africa, or while residing in South Africa, but having assets in another country, it is strongly advised that a Will be drawn up for you which will specifically apply to the administration of your South African Estate and at the same time, another Will be drafted to deal specifically with your assets in the other country and which will then only apply to your assets/Estate in that particular Country. The reason for having a Will to attend to the administration of your estate, in each Country where you have assets, is due to each Country having its own particular Laws which prescribe how an Estate is to be dealt with and wound up.

11. What happens when my beneficiaries are not resident in South Africa?
Regulated by the South African Exchange Control Centre and the Reserve Bank, a beneficiary living overseas who receives an inheritance from a South African Estate will fall into one of three categories:

12. A South African Resident who is temporarily living abroad:


  • The options that the beneficiary has is to:
    Transfer funds using the R10 million foreign investment allowance which will require a tax clearance and a green bar-coded South African Identity document;

  • Placing emigration on record with the South African Reserve Bank – this can be done with the help of SARS or your bank. 
 

13. A South African resident who has already emigrated in terms of Exchange Control and already classified as a non-resident:

Funds can be transferred provided that the beneficiary can provide proof or confirmation of their emigration which involves providing the South African Reserve Bank’s reference number or some sort of approval which one receives when originally emigrating.

14. The requirements for the Reserve Bank vary from time to time.
Non-resident – the beneficiary has never been a South African citizen: This is the easiest as the beneficiary is only required to provide proof of their non-resident status and thereafter transferring funds overseas.

 

15. Do I have to change my Will after I get divorced?
You will need to change your Will within 3 (three) months from date of your divorce. Failing to do so within the stipulated period will mean that upon your death, your estate will be administered according to your wishes prescribed in that particular existing Will, a consequence you may wish to avoid!

16. What is the difference between a will, a living will and a codicil?

  • A Will is a document which prescribes your final wishes for how you wish for your Estate to be divided after your death.
  • A living Will is a document which prescribes your wishes should you be in a medical condition whereby you are no longer able to express your informed consent, and the living will, therefore, set out your wishes regarding, for example, the extension of life by artificial life support systems, and continued medical intervention. A codicil is a document which amends a part of your existing Will and upon your death, your Will and Codicil are referred to as one when administering your estate.
 

Conclusion
An estate plan including the making of a will, is not just about passing your assets to your loved ones. It gives you peace of mind that your loved ones will be taken care of in the manner you would have wished, after you pass away. You can never go wrong by having your Will and Testament in place. 

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