During the lockdown period we all have more time to attend to our outstanding personal matters, to attend to long delayed personal admin and to get our affairs in order.
An important question is: Do you need a Will or not, and if not, why not?
Our first question should be: What is the difference between having a Testate Estate as opposed to an Intestate Estate?
What does intestacy entail?
If a person dies without a Will, or if the Will is found to be invalid, the estate will be administered in terms of the Intestate Succession Act, Act 81 of 1987.
Intestate succession is based primarily on blood relationship. Illegitimacy will not affect the capacity of a blood relation to inherit. An adopted child is considered a descendant of his adoptive parents.
The Act prescribes how an intestate estate will be divided among relatives of the deceased:
- If the deceased is survived by a spouse or spouses, and has no living descendants, the spouse inherits the estate. Where the deceased was a husband in a polygamous marriage the surviving spouses will inherit in equal shares.
- If the deceased is survived by a descendant, but not by a spouse, the descendant or descendants will inherit the estate.
- Where there is a surviving spouse and descendants, the spouse will inherit R250 000 or a child’s share, whichever is the greater. The children will get the balance of the estate, and if a child is deceased and has descendants, that child’s portion will go to his/her surviving spouse and descendants.
- If the deceased leaves no spouse or descendants, but is survived by both parents, the surviving parents will inherit the estate in equal shares.
- If the deceased has no surviving spouse or descendants but has only one surviving parent, the parent inherits half the estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent will inherit the estate.
- If the deceased is not survived by a spouse, descendant or parent but is survived by descendants of the deceased mother or father who are related to the deceased through the parents, one half of the estate will be divided equally among the mother’s descendants and one half of the estate divided equally among the father’s descendants.
- If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, the other blood relations of the deceased who are related to him nearest in degree will inherit the intestate estate in equal shares.
- Where there are no relatives, and the assets have not been claimed by a legitimate heir after 30 years, the estate is forfeited to the state.
In the case of someone dying without a Will, the Master of the High Court may appoint an executor dative since no-one would have been nominated in a Will. The executor’s first duty is to locate the Will if there is one. If a Will cannot be found among the deceased’s personal papers, inquiries should be made at the deceased’s lawyers, accountants, bank or insurance company who might have it in safe keeping. If a Will is not found, the estate must be administered as if no Will had been drawn up.
These rules only apply if the deceased was domiciled in South Africa at the time of death. If the deceased was domiciled in another country, the laws of that country will apply, not the rules set out above.
What is a Testate Estate and how does it differ from an Intestate Estate?
When a person has drawn up and signed a valid Will before his or her death, that person would have a Testate Estate. The laws of intestacy would not apply and the estate will be administered according to and in accordance with such Will. The deceased’s assets would be divided among the persons nominated in the Will, the so-called heirs of the deceased.
The requirements for drafting a valid Will are contained in Section 2(1)(a) of the Wills Act 7 of 1953.
These requirements are fairly simple and straight forward, but even an innocent oversight may invalidate the entire document. On application a Court may condone a Will that does not comply with all the formalities in order to avoid a situation where such a Will is invalid, and the testator’s wishes and intentions are frustrated.
However, it is much better to comply fully with all the requirements in order to avoid any complications and delays.
Some of the basic requirements for drafting a valid Will include the following:
- The testator must be older than 16 years of age and must be mentally capable of understanding the consequences of his or her actions at the time that the Will is drafted.
- The Will must be in writing, either handwritten or printed, and it must identify the testator clearly.
- Each page of the Will, including the last page, must be signed by the testator. The Will must also be signed by two competent witnesses. A person will qualify to be a competent witness if he/she is 14 (fourteen) years of age or older.
- The signature of the testator/testatrix must be made in the presence of two or more competent witnesses.
- The witnesses must attest and sign the Will in the presence of the testator/testatrix and of each other.
A correctly drafted Will that gives effect to the wishes and intentions of the Testator, is a very important part of everyone’s personal affairs. To make sure that your assets will go to where you want it to go after your death, make sure you get your Will in place in time.
For information on the benefits of having a Will and for assistance on how to get a valid Will in place during the lockdown period, email us at firstname.lastname@example.org
During this period, we are also able to offer free 30-minute consultations on Wills via Cellphone calls, Zoom or WhatsApp conversations.
Maryka Vermaak on 082 788 4499
MC on 082 349 4582
Chris on 082 491 0032
Chris Fick & Associates Inc.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)