DIY Will and Testament

Do-It-Yourself Last Will and Testament: Possible Pitfalls

Estate planning is the process of legally structuring the future disposition of current and projected assets. Estate planning helps you look after your family’s financial security and maximize the value of your estate by reducing taxes and other expenses. One of the tools of estate planning is the Last Will and Testament.

A Last Will and Testament is a specialized legal document incorporating your last wishes and requests with regards to your assets and beneficiaries. It therefore dictates how your estate should be divided when you pass away.

If you die without a valid Last Will and Testament, your estate will be distributed in terms of the stipulations of the Intestate Succession Act 81 of 1987. This may include beneficiaries whom you may not have wished to benefit, or exclude persons whom you would have preferred to benefit.

It is possible to write a Will all by yourself or make use of a generic template without the help of an Attorney. However, there are plenty of pitfalls when drawing up your own Will. For this reason, a do-it-yourself (DIY) will is potentially dangerous and should be avoided.

Possible pitfalls may include the following:

  • A person drafting a Will must ensure that it is clear and concise, represents the true intentions of the Testator, and meets certain legal requirements for it to be valid. Wills drafted by those with little or no experience usually lead to problems. Remember: when a Will “speaks”, the person who made it is no longer there and consequently the Will cannot be remedied.
  • If you have minor children or a disabled child, it is advisable to create a Testamentary Trust in your Last Will and Testament. A Testamentary Trust only comes into effect upon the death of that person. The Will then operates as the trust deed spelling out the terms of the trust. There are certain legal requirements that need to be included in your Will for the Testamentary Trust to be formed by the Master of the High Court.
  • In many instances, Wills are used to direct when and how the bequests should pass to the beneficiaries. A Testator may include as many conditions in his Will as he wants, but not all conditions are valid and binding. An Attorney can advise which conditions are allowed, not illegal, or contrary to norms and morals of society.
  • Tax legislation and decisions made by the courts also impact on Wills and estate planning and, therefore, a Will must be drafted in accordance thereto.

As you will note from the above, a Last Will and Testament is an intricate legal document that must be drafted correctly in order to ensure its validity. It is, therefore, important to have a seasoned practitioner, with the necessary knowledge and expertise, to assist you in drawing up your Will.

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Why you would want to have a last will and testament

Here are four reasons why it is important to have a last will and testament:

1. To leave a legacy

  • A last will and testament gives you the ability to nominate your heirs, beneficiaries or legatees.
  • This eliminates an estate battle when you die.

2. Provide for your family’s future

a) Nominate a guardian

  • This is the place of safety that your children will go to should both parents die simultaneous or they die within a short period.
  • With you nominating a guardian it assists in the application process.
  • Remember to tell the nominated guardians of your choice that you have nominated them, as it might surprise if they don’t feel up to it and decline the appointment.
  • This will also give you peace of mind knowing that your children will be taken care of.
  • If no guardian is nominated, anyone in the family can apply for guardianship.
  • If there is no family or close relative, then the court might place them in foster care.

b) Set up a testamentary trust

  • Important to make provision for the trust if there are minor children or handicapped beneficiaries.
  • If no provision is made, monies are payable to the guardian’s fund (not the best option — there have been instances of guardians being declared bankrupt).
  • This ensures that your minor or handicapped beneficiaries’ inheritance stays safe.

3. Nominate an experienced and professional executor and trustee

To nominate an executor and trustee who will assist the family during their time of bereavement in order to give them peace of mind, knowing that there is a responsible person taking care of your affairs.

a)  Executor

Here are a few tips when choosing an executor:

  • You need to be comfortable, but also informed, when nominating an executor as there are fraudsters who have no intention of ensuring that your last wishes be fulfilled.
  • Not everyone is suitable to be an executor so, even if you feel that you would like a family member to be the executor, the master will ask that he/she gets someone to assist — as our firm can do.
  • It is better to nominate — in advance — an independent third party, such as an attorney, trust company, bank or auditor
  • Remember to nominate someone who deals specifically with estates in order to avoid any unnecessary delays.

b) Trustee

  • You need to nominate a person who you know and trust to ensure that your minor or handicapped beneficiary’s interest will be safeguarded.
  • This goes hand-in-hand with the executor and applies similarly to the above point.
  • You need someone who knows the minor or handicapped beneficiaries, bearing in mind that — as protection — an independent third party should also be appointed.

4. Minimize estate duty taxes

You are in control of how the prescribed abatements will be used to your advantage. This will minimize the death duties payable to SARS when you die.

Finally, and, perhaps most important, what happens should you die without having a valid last will and testament?

The intestate succession act applies and this means:

  1. The act prescribes who your heirs or beneficiaries are
  2. There is no protection for your minor or handicapped beneficiaries.
  3. The beneficiaries are in control of nominating an executor and this may cause them to nominate the wrong people while they are still in the bereaved period.
  4. No control of use of the abatement for death duties payable to SARS.
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