Does your will effectively achieve what you intended after your death? A will should guarantee peace of mind for the testator and his/her loved ones. Consider these practical tips for safeguarding your intentions and streamlining the efficiency of your will.
Wills should be drafted as unambiguously as possible. One should think through each aspect of a will as well as how each scenario could possibly play out. The will must achieve what it was intended for. Ensure assets and beneficiaries are adequately defined so that there can be no confusion after your death. Set out full names, the relationship with yourself and, if possible, identity numbers of beneficiaries and include descriptions, serial numbers and makes of assets. For immoveable property, add erf numbers and street addresses.
When drafting your will, bear in mind that the consequences of a community of property marriage or a marriage subject to the accrual system will automatically come into effect on the death of a spouse. It is thus important that you assess what your estate will most likely consist of on your death. If you are married in community of property, you can only bequeath your share of the estate as your surviving spouse will automatically be entitled to a half share of the joint estate. A marriage subject to accrual might have a larger or lesser cash value on the death of a spouse due to the delayed community of property aspect of such a marriage.
Updating your will
Remember to update your will in line with the changes in your life. Examples include getting married or divorced, having children, gaining or selling off relevant assets and the death of a beneficiary. Although the law allows amendments to wills, it is generally advisable to draft a new will as various amendments to wills could make the document cumbersome and complicated.
Previous wills must be revoked in a new will, failing which the wills will be read together. To prevent any confusion regarding the sequence of wills, ensure that all wills are dated.
Divorce and death
Should you die within three months of your divorce, the law revokes an inheritance to your divorced spouse, as if the ex spouse had died before the divorce, unless you want your ex spouse to inherit and take active steps to the contrary. Should you fail to change your will within the three month period, it will be assumed that you intended your ex spouse to inherit. Practically, it is best to change your will either before the divorce or as soon as possible as relying on a three month period could result in you forgetting or continually postponing this task to your detriment.
Ensure that there will be liquidity in your estate for the purposes of paying fees and duties, funeral expenses and outstanding debt. In the absence of liquidity, your heirs will have to pay out of their own pockets if they want to inherit or alternatively assets will have to be sold off to create cash.
If you are liable for maintenance to certain persons, it is highly likely that your estate could have a maintenance claim proved against it. This could leave your heirs severely compromised. If you anticipate this, you should look at ways of minimising the effects of this by, for example, taking out a policy.
Remember that specific bequests are paid out first. Consider the following situation. You bequeath large lump sums or high value or multiple assets to certain heirs and leave your spouse, the residue (whatever is left) of your estate. However, your circumstances change by the time you die or alternatively, you did not think the situation through carefully initially. Your spouse could end up with very little or nothing at all.
For complicated or large estates there are financial planners and attorneys that specialise in wills and estates which are the obvious routes for saving on tax and duties. A will is an excellent route for attaining tax efficiency in an estate.
The modern trend towards multiple families also creates financial complications that would benefit from experienced professionals. Trusts can be created if your spouse and children are not able to manage their finances after your death.
The more complicated your personal life or your business interests or assets are, the more advisable it is for a professional to draft your will or at the very least check that your will efficiently and adequately caters for your heirs and circumstances.
Wills Act 7 of 1953