Your will is the most important document you will sign; and if done properly it will give peace of mind to you and your family.
Mike Wilkinson will be happy to draft your will, free of charge, or to advise you on your existing will.
We would like to encourage you to make a Will. Here are some of the more important aspects which you need to consider.
Even if your assets are not of great monetary value they will be of sentimental value to you your family and those whom you care for.
A properly prepared Will allows you to direct, before your death, what must happen to your assets after your death; and you decide who will distribute your assets.
The law does not compel one to make a Will but anyone of sound mind older than 16 years may do so.
We strongly encourage everyone to make a will or to review your existing will.
Reasons to draft a Will (i.e. to die Testate)
• Your assets will be distributed according to your wishes
• You will nominate someone you trust to be the executor who will carry out your wishes in terms of your Will.
• To protect the inheritance of minor beneficiaries and secure their maintenance.
• By making your wishes known, you will avoid conflict and confusion amongst those closest to you.
• Estate Duty and other costs can be estimated and in some circumstances even avoided.
What happens if you die without a Will? (i.e. die intestate)
If you die without leaving a Will your estate will be dealt with under the Laws of Intestate Succession. This may cause unnecessary hardship for your family as the following problems may arise:
• your assets may not be distributed according to your wishes
• an executor must be nominated and appointed which may cause a delay as the intestate heirs have to consent to such appointment. Such nominated Executor may have to lodge security with the Master of the High Court before receiving the appointment as executor
• the appointed executor may be someone you would not have chosen yourself
• Any awards due to minor bene ciaries would probably have to be deposited to the Guardians Fund of the Master of the High Court.
What happens in the case of a divorce?
When a person dies within 3 months after a divorce has been granted, any bequest to the divorced spouse under a Will signed before the divorce will fall away, unless it is clear from the Will that this was not the intention. However, should the person not sign a new Will after the 3 month period, then the original Will becomes valid again.
Further Changes of Circumstances that may require you to update or review your Will
Change of circumstances would include:
• changes in marital statues
• birth of a child/grandchild
• purchase/sale of a property
• death of a spouse, an heir or executor
• nominated in your Will
• increase in the value of your estate
• changes in legislation
• changes in your intentions or wishes
Points to consider when drafting your Will
The Beneficiaries / Heirs: - the persons to benefit must be clearly identifiable from the Will.
Special Bequests or Legacies - A bequest or legacy is a specific item or an amount of money which is left to a specific beneficiary. Any item so bequeathed must be clearly described.
The Residuary Heirs - Heirs are the bene ciaries inheriting the remainder of the estate after payment of liabilities, expenses and bequests or legacies. The assets need not be described or listed.
Trusts - A Testamentary Trust may be created should you wish a benefit bequeathed to a beneficiary to be administered by a trustee for the benefit of the beneficiary. For example should your beneficiary be a minor or someone incapable of handling his/her financial affairs or should you wish someone to enjoy the income of the benefit for his/her lifetime while someone else enjoys the capital on the death of the income beneficiary, there may be a good reason to create a Testamentary Trust. I.e. a Trust set up after death in terms of the Will.
Guardians - a guardian may be nominated to take care of any minor children.
Executor - The executor is the person you nominate to take control of your assets and to administer and distribute your estate in terms of your Will. In view of the specialised knowledge required to administer an estate the Master of the High Court will usually insist that a professional be used to administer the estate. A professional person may therefore be nominated or a family member may be appointed who would then appoint the services of a professional person. More than one executor may be appointed. A good balance is achieved by appointing a family member and an attorney as co – executors.
Trustees – The Trustee will administer the Testamentary Trust once the estate administration has been nalised. The Trustee is governed by the powers given in terms of the Will. The Trustee must keep accurate records of all his transactions and is accountable to the bene ciaries of the Trust. The Trustee need not be the same person as the Executor and more than one trustee may be appointed.
Estate Duty - Estate Duty is payable at the rate of 20% on the nett value of the deceased's assets exceeding R3.5 million. Assets left to a spouse are exempt from Estate Duty.
General
Further points to consider:
Consideration must be given to ensure continuation of business interests after death, by way of agreements with partners in writing. Oral agreements are very dif cult to prove after death.
If you have remarried and have children from a former marriage, the relationship between step-parent and step-child should be considered.
Limited Interests such as usufructs and duciary inter- ests may be considered to achieve your wishes
Should you have overseas assets, it is recommended that you discuss this with us.
No one wants to think about dying and it is easy to put off preparing your Will, yet a will can have a profound effect on the happiness and wellbeing of the people you love the most
Michael Clive Wilkinson B.A.LL.B. (Natal) Cert Tax & Estate Planning (Unisa) has been drafting wills for many years. With his thorough knowledge of testamentary law and expertise Mike will ensure your wishes are carried out after your death.
Michael Clive Wilkinson has welcomed Leigh Ann Swart to M. C. Wilkinson & Co. Leigh Ann has a formal qualification in the administration of estates and has over 25 years in the field. Leigh Ann has held senior positions in both the public and private sector of the fiduciary industry. Leigh Ann administers estates with empathy for the needs and circumstances of the beneficiaries.
Come and discuss your needs; we would like to help you.