Wills and Trusts

No, it does not. What will happen is your heirs are determined by the Intestate Succession Act. This means the act determines who will inherit from you.

Yes, you can have a joint will. Each spouse’s wishes will be laid out separately. If spouses die together their wishes will be carried out as per their own wishes.

No, you don’t have to. Your spouse will be entitled to 50% of the joint estate in terms of your marriage but your 50% you can give to any person whom you wish to give to.

You can draft your own will however this could be dangerous in the sense that you may not include important clauses in your will. If this is not done properly you might also be at risk of the will not being accepted by the Master which will mean that you die without a will.

Testate means you had a valid will. Intestate means you died without leaving a valid will or did not have a will.

You can nominate any person however the law states that even if you nominate a person it may be that they will still need the assistance of an Attorney, Auditor or trust company to assist with the formalities.

It is always advisable to have a minimum of 3 trustees. When nominating a trustee, you need to always make sure that the 3rd trustee is independent and can administer a trust. This is to ensure that there is not a deadlock in decision making where one says yes and the other says no.

This is a choice you can make. The minimum age is 18 as this is the age of majority in South Africa. When deciding on an age, one needs to also look at the value of the trust as the trustees will have a discretion to not create a trust if the value is not high enough to create the trust.

You don’t have to however it is always best to do so. This simplifies the process if the guardian is nominated by the deceased as it also makes the wishes clear to those family left behind.

Yes, you can however you need to be careful as you may not discriminate or badger the beneficiary you are excluding.

Yes, however only if the specific clause is included that stipulates that if one pass away without leaving a further will then this will be still accepted.

When this happens then the law of the Intestate Succession act will apply which means that the law will go back into he family tree and see who is next in line to inherit from you

If you don’t have a trust clause in your will and you have minor beneficiaries, then their inheritance will be paid to the Guardians Fund. This means money gets paid to the Master’s office and the minor can access these funds upon reaching the age of 18.

• There is no administration of funds which means low or no interest on these funds.
• It is not easy to get money released from the fund.
• If these funds are unclaimed for 30 years then they are paid to the state.
• In the past the Guardian’s fund has been bankrupted due to poor administration.

The executor is responsible for the administration of the deceased estate. The trustee’s responsibility comes into effect once the executor pays the moneys to the trust for administration by the trustee.