When last did you update your Will? Do you even have a properly drafted Will? As we head into the festive season and another new year, this may well be an ideal opportunity to reflect on setting your personal affairs in order, including your Will.
The mortality rate is known to increase every year around the Festive Season and New Year, the majority of which can mainly be attributed to road accidents. COVID-19 also continues to have an impact on the death rate, which is rising yet again.
What Happens If You Die Without A Will?
If you don’t have a valid Will when you die, then your assets will be divided up between your spouse, any children you may have left behind, any siblings or your parents – depending on who is left behind and their relationship to you. Should you have none of these, then you run the risk of your property being distributed to your extended family and possibly people whom you would prefer did not receive anything.
It can also delay the appointment of an Executor, causing other unnecessary costs and delays along the way, which may increase the levels of conflict within your immediate family.
Who Can Create A Will?
Anyone who is 16 years or older and of sound mind may create a Will. It is, however, a legal requirement that the signing of a Will is witnessed by two people older than 14 and that the Will is in writing, with every page initialled and signed on the last page, by both the benefactor of the Will and the witnesses present. The Will allows you to appoint your choice of an Executor, as well as to divide up your assets.
What Are The Responsibilities Of An Executor Of An Estate?
During your life, you will assemble assets in the form of property, motor vehicles, etc. All these assets contribute to what is known as your “Estate”. On your death, these assets need to be overseen and distributed to the relevant beneficiaries. An Executor is a person who will administer this process and ensure that the details of your Will are carried out according to your instructions. It should take, on average, 7 to 18 months to finalise your estate – but there can be exceptions.
The Executor will meet with your family, shortly after your death, to gather all the documentation and information required to oversee the dispersal of your assets. They will also be required:
- To report the deceased estate to the local Master of the High Court.
- To provide notice of your passing to any debtors and/or creditors.
- To close your existing accounts.
- To determine the total value of your estate after all the debts have been paid.
- To distribute the remaining assets to your beneficiaries.
It is important to note that Executors charge a fee to administer the Deceased Estate and these fees are currently 3.5% of the gross value of the Deceased Estate. Depending on who the Executor is, may depend on how negotiable this percentage is.
What If There Is No Cash, Or Your Estate Is In Debt Without Any Assets?
If there is no cash in your estate, but perhaps a few assets such as a house and a car, then the Executor may request the beneficiaries of your Will to pay any shortfall, or request their permission to sell the assets to obtain cash in your estate.
If your estate is in debt when you die and you have no assets, your family will need to report this to the Master. The Master will then issue a letter confirming that your estate was reported and that there are no assets. This letter will be sent to any companies to which you owed money at the time of your death.
Where Should You Keep Your Will?
You need to ensure that the original signed Will is kept safe by someone you trust or by your bank or Attorney. You may have more than one signed copy of the original Will to ensure that it is never lost. However, an original signed copy must be obtainable after your death. Photocopied signatures will invalidate your Will.
Why You Should Use An Attorney To Draft Your Will.
Although you are not legally required to use an attorney to draft your Will, you should obtain their professional services. A Will is a very specialised document, and you need to ensure that it complies with all the relevant rules and regulations, to be accepted as a valid Will.
When Should You Update Your Current Will?
It may be time to review your current Will in the event of any births, deaths, new businesses or any other legal events that took place in your family, since you last drafted your Will, as these events may have an impact on your assets or beneficiaries. It may also be worthwhile having an Attorney review your latest Will to check that it is still valid.
Furthermore, if your estate is a very complex one, it is best to nominate an Attorney firm, such as AED Attorneys. They will also provide you with the necessary legal guidance and other helpful tips to ensure that all bases have been covered.
AED Attorneys is in good standing with all Master’s offices and has a dedicated Consultant who attends to this work.
Furthermore, AED Attorneys has built a professional network of experienced service-providers to assist with the many services that a Deceased Estate may require, such as auctioneers, appraisers, bookkeepers, etc. This has provided AED’s clients with peace of mind during what is a very challenging time in their lives.
The AED team is known for their compassion, understanding and desire to go the extra mile for all their clients. In her own words, Annie Davids, Founder of AED Attorneys, says, “I aim to provide a service that connects with clients, most of whom need sympathy and understanding or a wise voice to explain the finer points of family-related legal processes in South Africa.”
For a trustworthy firm that values long-standing client relationships, contact AED Attorneys to assist you in drafting your Will or in updating your existing Will.
AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.