ESTATE PLANNING & WILLS

WILLS & TESTAMENTS

What is a Will?

A last will or testament is a legal document that regulates what happens to a person's estate (assets and liabilities) after his or her death.

Why should I have a Will?

You need a will to indicate who your beneficiaries and the executor of your estate should be after you have passed away. It will also place you in a position to appoint a guardian of your choice to take care of your children if they are minors when you pass away.

What happens to my assets if I die without a Will?

If you die without a Will, your estate will be distributed in terms of the law of intestate succession. This may include beneficiaries whom you may not have wished to benefit or may exclude persons whom you would have preferred to benefit.

The Master of the High Court will appoint a curator to take care of or administer the property of your minor children and their inheritance will go to the Guardian’s Fund. A guardian, whom may be different from the person you would have not preferred to care for your children, may be appointed by the court for that purpose.

When a person dies intestate, the Master appoints an executor of the estate. This may not be a person you know or trust.

Who can draw up my Will for me?

It is important to have a person with the necessary knowledge and expertise to draw up a Will. The Will must represent the true intentions of the Testator and meet certain legal requirements for it to be valid. Attorneys understand the legal formalities that are required for a valid Will, for example:

1. The Will must be signed and dated in the presence of two witnesses.

2. Both witnesses must be of the age of 14 or above and be competent to give evidence in a court of law.

3. A beneficiary in the Will must not be involved in the drawing up or attesting to a Will as a witness.

4. A person who attests and signs a Will as a witness or who is involved in the drafting of a Will is disqualified from benefitting under the Will.

TRUSTS

What is the purpose of a Trust?

A trust is used to protect the interests of your dependents while they are unable to do so themselves. An attorney can assist you to set up a trust. A trust can own property, receive donations and inherit money from your estate when you die. What makes a trust so secure is due to the fact that its decisions are taken by the trustees whom you appoint when you create the trust. The beneficiaries can only claim their benefit at the age or time provided in the Will.

Types of Trusts

The two types of trusts are:

An inter vivos trust (a trust between the living or a group of people) for the benefit of selected beneficiaries.
A testamentary trust (stipulation/provision in a will) for the benefit of the testator’s heirs.

Legal requirements for a valid Trust

There are processes and strict requirements involved with creating and managing a trust and trustees. We can guide you and/or your appointed trustees to ensure matters are handled in terms of prevailing best practice.