It only happens in films where a last will and testament is scribbled on a scrap of paper and the real heir gets all the money.
Many people think they know all there is to know about a last will and testament, but they actually do not. Do you know what happens if you die without a will? Or that witnesses cannot benefit from your will?
Even when you have substantial assets, the absence of a valid will or the presence of multiple conflicting wills can leave families facing uncertainty, delays and legal complexities.
“A will gives you control over how your estate is distributed. Having a valid will is not just about protecting your assets but about protecting the people you love and giving them clarity and certainty during a difficult time,” Faeeza Khan, senior legal specialist at Liberty, says.
She stresses that South Africans should not take having a will for granted.
“Contrary to popular belief, anyone, regardless of their social or financial circumstances, should document their wishes to safeguard their assets and ensure those wishes are honoured after their death.”
Khan says these are the things you should know about a will:
If you die without a will, the law decides for you
In South Africa, the Intestate Succession Act determines who inherits if you pass away without a will. This means your assets are distributed according to a fixed formula, not necessarily in line with your wishes.
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Children under 18 cannot inherit directly
When it comes to minor children, you need more than a will to ensure they are protected after your death. Assets left directly to a minor child go into a fund administered by the state, unless you set up a trust in your will.
“Having a will is not enough to secure your minor children’s inheritance. To ensure that they do inherit from your estate your will must include provision to set up a testamentary trust.”
A testamentary trust holds and manages assets on behalf of minor children according to the instructions of the deceased.
Your will is only valid if it is signed
“Your will is not valid if it is not signed,” Khan says. “To comply with the law, it must meet the formal requirements: it has to be in writing, signed by the testator (you) who is at least 16 and of sound mind and witnessed by two people over the age of 14 who are also of sound mind and competent enough to give evidence in a court of law.
“You must sign your will in the presence of the witnesses or confirm that the signature on the will is yours, otherwise the document will not be recognised as valid.”
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Witnesses cannot benefit from your will
The people who sign your will as a witness cannot inherit from you. If they are listed as a beneficiary, their share is likely to be voided if they signed as a witness. “Do not sign as a witness if you are an heir or if you are the executor, a trustee or if you are guardian.”
Contrary to popular belief a verbal will is not valid but a handwritten one can be.
“Verbal wills are not valid but handwritten and downloaded wills are valid as long as you meet the formal requirements. You must sign it, as well as two witnesses, everyone being of sound mind for you have a valid will.”
Adopted children have the same rights as biological children
Adopted children are treated equally in inheritance matters. However, Khan says, foster children do not automatically qualify unless they are specifically included in your will.
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Drawing money from deceased’s bank account could cause legal problems
“When someone passes away, family members often access their bank account and withdraw all the available cash to cover unforeseen costs linked to the death. This is a risk as the bank account is an asset of the deceased’s estate. The only person who has the authority to access that account is technically the executor,” Khan warns.
Your debts do not disappear when you die
Your liabilities must be settled before any inheritance can be distributed according to your will. This is done using available cash or through the sale of your assets to generate cash.
“The executor first pays off the debts and expenses of the estate. Only once those are cleared the heirs receive what is left. If there are not enough assets, the estate is declared insolvent, but heirs do not inherit the debt.”
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Life insurance and pension funds do not automatically form part of your estate
Life cover pays out to the nominated beneficiary, unless you name your estate as the beneficiary to create liquidity to settle debts and expenses. Pension funds are distributed according to the Pension Funds Act to legal and factual dependents, not necessarily according to your will.
