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.