Wills

Trusts and Wills - Wills

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Important Tips to Remember for Your Will

  • Identify yourself in the will with exact precision.
  • Sign the will on every page.
  • At least two witnesses must sign on the last page of the will. These witnesses must be 14 years old or older.
  • Date the will.
  • Include a revocation clause if you want to cancel all previous wills.
  • Name the executor(s). Find out what powers the law gives an executor and decide whether you want to give him/her more powers in your will.
  • Indicate who will inherit your property when you die.
  • Check that you have accounted for all your property in your will. Identify your beneficiaries by giving their full names, dates of birth and relationship to you. Identify the benefits you give by describing the property in clear and exact language.
  • When you use the word "children", think about which children you want to benefit. Make your will reflect what you want it to.
  • Appoint substitute beneficiaries should your first choice beneficiaries die before you.
  • If you do not want the spouse of a beneficiary to share in your property, say so in your will.
  • Consider whether you want to put your property into a trust, especially where you have minor children. Nominate your trustee(s). Set out in the will what you want the trustees to do with the trust property.
  • It is advisable to nominate a guardian for your minor children.

 


When you die, any person who has the original signed will is required by law to send it to the Master of the High Court. The Master is a state official who is in charge of the winding up of the estate of deceased persons. If the will does not name an executor, the Master will either appoint someone directly or convene a meeting of, among others, the surviving spouse and the heirs of the deceased, for the purpose of recommending to the Master a person for appointment as executor. If the will does name an executor, this executor must report to the Master. The Master must first confirm the appointment of the executor before he or she can start his or her duties.
The liquidation and distribution account the executor establishes what the deceased owed at the time of his or her death by advertising to creditors to make their claims known to him. The executor then draws up an account of the estate of the deceased, called a Liquidation and Distribution Account. The account adds up the debts of the deceased. It. also calculates the total assets of the deceased. The debts are subtracted from the assets. The difference will then be divided among the beneficiaries.
The executor sends the account to the beneficiaries and to the Master of the High Court. The executor advertises that the account will lie in the Magistrate's and Master's office for three weeks for inspection. (The executor must advertise in the government newspaper, called the Government Gazette, and in an ordinary newspaper.) Anyone who is interested can inspect it there. If nobody objects to the account, and the Master is satisfied with it, the executor pays the creditors and divides the balance among the beneficiaries. The executor is then released from his or her duties by the Master. The executor is paid a fee from the estate for his or her work.


Just as you review your budgets and other financial plans, you should review your will every now and then. You should do this especially if there have been major changes in your circumstances, such as marriage, or the birth or adoption of a child.
You can change part or the whole of your will at any time. There are a number of ways in which you can do this:

  • The simplest is to make a new will in which you state that you cancel all previous wills.
  • If you change your will by writing the changes on the will itself, then you and two witnesses must sign next to the alteration. If you and the witnesses do not sign, then the will shall be read without the change. (Again, you are strongly advised to date the alterations.)
  • You can cancel your will simply by destroying it with the intention to cancel it. But this may give rise to certain difficulties when you die. An example of such a difficulty is that it may not be clear whether you destroyed the will or whether someone else did, without your consent.

In short, the safest way to change your will is to make a new one in which you cancel the previous will. If you do this, then also make sure that you destroy the previous will.

Three months grace for divorce
Spouses usually benefit each other in their wills. On divorce, they are often too upset to think about changing their wills in order to disinherit their ex-spouse. But they probably would not want their ex-spouse to inherit from them. The law accordingly allows a spouse three months in which to change his or her will. Put simply, if H makes a will in which he leaves property to his spouse W, and the spouses sub­sequently divorce, W will not inherit anything if H dies within three months of the divorce without having changed his will. However, if H dies more than three months after the divorce without having changed his will, then it is his fault for not changing it. The law will not change it for him. The assumption then is that H did not want to change his will.



Declaration
The person who makes the will, called the testator/testatrix, should identify himself/herself as precisely as possible.

Revocation
To revoke your will means to cancel it. There are a number of ways in which to change part or the whole of your will, one of the easiest ways is to make a new valid will in which you state that you cancel all previous wills.

Nomination of executors
An executor is a person who winds up your estate after your death. This means that he/she administers the assets and liabilities of your estate, and transfers the remainder to the heirs in terms of your will. You are not required by law to nominate an executor in your will. However, you are strongly advised to do so and can, moreover, nominate more than one executor.

The law does not require the executor to be a professional. However, where the nominated executor has had little or no experience, it is the practice of the Master of the High Court to insist that the executor nominate a qualified person to assist him/her in the winding up of the estate, If you appoint a professional as executor or a professional assists your executor in administering your estate, executor's fees will be payable. These fees are currently 3, 5% (plus VAT) of the gross value of your estate.
 

Joint wills
Two or more people can make their will together. This is called a joint will, i.e. it is a document containing the wills of two or more people. The most common joint will is made by spouses, more so if they are married in community of property.
It is not true that if people make a joint will, they can only change it jointly, Freedom of testation allows each person to change the joint will in so far as it concerns him or her.

Usufruct and fideicommissum
You may want to leave your property to your children, but at the same time provide for your spouse's needs while he or she is still alive. The device in our law which allows this to be done is called a usufruct.
A usufruct is constituted when a testator/testatrix leaves the ownership of certain property to one person, subject to the condition that some other person has the right to use it until the termination of a certain period.

For example, you may leave your house to your children, subject to the condition that while your spouse is still alive he or she has the right to live in it.
A fideicommissum is a legal institution in terms of which the testator/testatrix transfers a benefit to a particular beneficiary, who becomes its owner and who can use and enjoy it. At the end of a certain period of time, the benefit goes to a further beneficiary, who becomes the new owner, the difference between a usufruct and a fideicommissum is that, with a usufruct, the first. Beneficiary is not the owner of the property. He or she simply has the right to use and enjoy it. The second beneficiary is always the owner, whereas with a fideicommissum, the first beneficiary owns the property for a period of time before the second beneficiary becomes the next owner.
An example of a fideicommissum is where you leave your farm to your child, subject to the condition that when he or she dies, the farm goes to his or her child. When that child dies the farm belongs to the next generation. It is important to note that a fideicommissum limits the transfer of immovable property to three generations. The third generation thus acquires this immovable property free of such restrictions.

To date certain limitations exist on a testator's ability to bring about a subdivision of agricultural land through a testamentary provision. This also applies to the creation of a usufruct or fideicommissum over a farm. Note, however, that a new law which repeals these limitations, is about to become effective.
The above explanations are simply a few important examples of the many different ways in which you can make your will. The law gives you great scope to create a will that will best suit your wishes.

Massing of estates
Two or more people can, by means of a mutual will, merge their estates, or portions thereof, for the purpose of a joint disposition of the combined estate. Usually the surviving spouse gives up his/her right to an unrestricted half share of the joint. estate or, where they are married out of community, to his or her separate estate, to their children in return for a usufructuary, fiduciary or other limited interest in the massed estate. Thus a disadvantage of massing is that after the death of the first-dying testator/testatrix, the survivor cannot by a later will dispose of his/her share of the massed estate, if he/she accepts the limited interest conferred on him/her by the will. If you consider making use of this device, you are strongly advised to consult a professional he/she can point out any further disadvantages and advantages of this device.
We trust that the information contained in this document has been of value and further queries can be made to the writer.

 

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