The death of a loved one will generally be an emotional experience for the surviving family members. In addition to grieving, the family also assume the burden of taking care of the deceased’s personal affairs, which can be a fairly daunting task.
Having a valid last will and testament in place to navigate during these difficult times is essential for the following reasons:-
- Freedom
In South African law, a person has the right to bequeath his assets as he would deem fit. This right is referred to as freedom of testation. Should a person decide, for example, to exclude his spouse as a beneficiary of his estate, or, should he wish to bequeath his cash to one child and his immovable property to another child, he has the right to do so.
To give effect to such freedom a person must execute a valid last will and testament, wherein he clearly stipulates his instructions in relation to his assets.
Without a will, the provisions of intestate succession, as set out in the Intestate Succession Act, 1987 apply. In such circumstances the deceased’s estate will be distributed to the beneficiaries in accordance with certain formulas, as contained in the Act. Depending on the circumstances of the estate, this may prove to be impractical.
- Creating a trust
One can create a testamentary trust in a will and the trust provisions may be designed to meet the specific purpose for which the trust is intended. For example, a trust may be created for the care, maintenance, medical and educational needs of a minor beneficiary, who may receive any undistributed capital and income when he attains a specific predetermined age.
Without a will, the benefit due to a minor beneficiary will be paid to and regulated through the Guardian’s Fund, as overseen by the Master of the High Court. The beneficiary will then receive payment of his inheritance upon attaining the age of 18 years.
- Guardian of minor beneficiaries
In terms of the Children’s Act, 2005 one may nominate and appoint a person as guardian of a minor child and such nomination may be contained in a will. The person so nominated would be required to assume the responsibility of guardian upon the passing of the parent / natural guardian and must care for the minor child until such time as he has attained majority.
Without a will, a family member would need to apply to the High Court to be appointed as the guardian of the minor child. This can be a lengthy and costly process for the family, as well as an emotional burden on the minor child, especially where there is a dispute amongst the family regarding who should be appointed as guardian.
- Nomination of executors and trustees
The nomination and appointment of an executor and a trustee (in the event that a testamentary trust will be created) is included in a will and a person may entrust this important role to an experienced executor and trustee of choice.
Without a will, all beneficiaries who could potentially inherit in terms of intestate succession, must decide who, among themselves, is to be appointed as the executor of the estate. This can result in a further burden to the family and a delay in the process of an executor being appointed by the Master of the High Court, particularly if there is a dispute or disagreement between the beneficiaries, or when the whereabouts of some potential beneficiaries are unknown.
- Guidance to those left behind
Finally and most importantly, a last will and testament gives one’s family peace of mind. We know death is inevitable and by taking the time to plan for when that day comes, one can assure that family and loved ones will be looked after and protected. With clear instructions, as set out in a will, there will be no uncertainty regarding the distribution of assets and the protection of potentially vulnerable heirs.
Article by Karen Britz