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Leave a legacy - write your will RIGHT!

9 June 2022
6 minute read
Mother and daughter smiling

When a family member passes on, the last thing those grieving need are huge amounts of admin and confusion. To spare your family some of this pain in their time of heartbreak, you need a will that is easy to find, follow and implement. This will ensure that your family and loved ones will inherit what you want them to, quickly and without too much admin – and no drama.

To make sure this happens, you need to avoid these common mistakes when drawing up your will.

Mistake #1 Not signing or dating your will

This makes your will invalid, so even if it is clear, concise and everything else is in order, it cannot be implemented.

Make sure you: Sign and date your will, by hand and in ink, on the last page, and initial each page.

Mistake #2 Your will is not witnessed or the witnesses stand to inherit from the will

Two witnesses need to sign your will, to acknowledge that it is yours and that you are competent to sign it (the “of sound mind” principle). Your witnesses cannot be beneficiaries of the will – if they are, it could be suggested that they forced you into signing a will that benefits them.

Make sure you: Have your will witnessed by two people – who are not beneficiaries – who initial every page of the will and sign and date the last page.

Mistake #3 Naming minor children as heirs

Children under the age of 18 years cannot legally inherit in South Africa. Any property and assets, such as a home, will need to be held in trust for them until they reach 18 years. A trust can own assets on behalf of beneficiaries. The trust is managed by trustees, who can use its income and assets to pay for the minor beneficiaries’ expenses.

If you don’t set up a trust for minor heirs, the assets they inherit will be sold and the proceeds held by the Guardian’s Fund, which administers funds on behalf of minors. The Guardian’s Fund only pays certain expenses and only up to a certain amount (currently R250 000), which could mean your children won’t benefit in the way you intended.

Make sure you: Set up a testamentary trust in your will, name trustees who will administer the trust and stipulate which assets will be administered by the trust until your children reach 18 years, or an older age.

Top tip: Also name a guardian, the primary carer who will be responsible for your children should you pass away, in your will.

Mistake #4 Not telling anyone where your will is

It makes sense to let your family know where your will is kept, but some people can be reluctant to talk about anything to do with death. Don’t let this reluctance mean that you pass on without telling anyone where your will is!

Make sure you: Tell your family where your will is and who the executor is (see the next point).

Mistake #5 Not naming an executor or naming only a beneficiary as executor

The executor is responsible for carrying out the wishes in your will and winding down your estate. When you pass, all your assets, such as the family home, car, savings and investments, and liabilities,  such as a home loan or credit card debt, make up your estate. Your executor has to ensure they have all the details of these assets and liabilities, pay all debts and distribute the remaining assets to the heirs.

There is a lot of admin involved and the process can become quite complicated, so ideally an executor should be an expert, such as an attorney or financial adviser. While an executor can be a beneficiary, it is not advised. If you do name a beneficiary as your executor, you should name another executor (who isn’t a beneficiary) to work alongside them. This avoids any suggestion that the executor is favouring their own interests only.

Make sure you: Name a responsible adult as executor, tell them where the will is and any specific instructions regarding your will – today!

Mistake #6 Your will contains details of policies in which beneficiaries have been named

Your life insurer will pay a valid claim directly to the beneficiary named on your life cover policy – the proceeds don’t have to be paid into the estate. This ensures your beneficiary receives the payout quickly, without having to wait for the estate to be wound up. However, if your will includes details of your life policy and who you want to leave it to, the claim could end up being paid into the estate, causing delays that leave your loved ones without funds for months, if not years.

Make sure you: Name beneficiaries on your life insurance policy and don’t mention the policy in your will! And tell your beneficiaries where your policy is and how they can claim!

Mistake #7 Your will is vague

Wills need to be very specific and clear to avoid any confusion. For example, leaving the family home in 10th street to your cousin George is going to cause problems because neither a specific address or a surname are listed!

Make sure you: Identify people by full names and relationships to you, with ID numbers if possible, and list property as specifically as you can – according to title deeds and official documents.

Mistake #8 Your will is out of date

You marry, have children, divorce, remarry, move home, your children leave home and start their own families – when you go through any of these life events, you should review your will. Leaving property, or worse family members, out of a will can be the cause of much difficulty and confusion for your loved ones!

Make sure you: Check and update your will once a year and when a life event such as a marriage or buying a property takes place.

What happens if you make these mistakes?

Effectively, you die without a valid will, which means your loved ones may not inherit as you wish or it may take a very long time to wind down your will, which could leave your loved ones without funds for many months, even years! Here’s how this works:

  1. Your will can be declared invalid and your estate intestate. This means your family will have to go through the Master of the High Court to  wind down your estate, which can be time consuming. If necessary, the Master will appoint an executor to resolve your estate. Importantly, the laws of intestate succession are very clear on who inherits if there is no valid will, which means your loved ones may not inherit as you had planned.
  2. Your will can be challenged in court by a family member or dependant. Again, this can be extremely time consuming and costly.
  3. Your generational wealth plans for your family can be derailed…. (explain how a will ensures this happens, etc)

Get help with your will

You can contact an attorney or fiduciary expert to help you draw up a valid will. Your financial adviser or bank may also be able to assist.

1Life policyholders can use their Legal assistance benefit to help them and their spouse or partner draw up, and update, a will – at no extra cost!

Keep your family’s wealth intact

There are costs associated with winding down an estate, and the longer the process takes, the more it costs! Keeping your will free of mistakes will ensure your family and loved ones can inherit quickly, and their inheritance won’t be eaten up by unnecessary costs. Draw up or update your will today!

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