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Why you Must Have a Will (Pro’s and Con’s)

HOME / Why you Must Have a Will (Pro’s and Con’s)

Why you Must Have a Will (Pro’s and Con’s)

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Will in South Africa: Why It Matters and the Pros and Cons

Creating a Will in South Africa allows you to decide how your estate will be distributed and who will be responsible for administering it. Without a valid Will, your estate will be distributed according to statutory rules, which may not reflect your personal wishes.

Why you Must Have a Will (Pros and Cons)

At Martin Vermaak Attorneys, we understand the importance of having a Will to protect your assets and provide for your loved ones. Our team of experienced attorneys can assist you in creating a comprehensive will that clearly outlines your wishes and ensures that your assets are distributed according to your desires. We offer a range of will-related services, including drafting Wills, reviewing and updating existing wills, and assisting as executors. Contact us today to learn more about our will services and to schedule a consultation with one of our attorneys.

Many times in people’s lives, they know they should make a Will, yet they shrug it off and ignore it. They tell themselves they’re not going to die anytime soon. They think they should make a Will, but a little later, not now.

Years can sometimes go by with them going through the same thought processes, but it does catch up with you – or your loved ones – in the end.

Having a properly drafted Will that can be executed per your instructions by the Executor is the one long-lasting act you can take to protect the people you love.

What Is a Will?

A Last Will and Testament is the document you use to plan your estate. It communicates your last wishes as they relate to your possessions, dependents and people in your life.

What Happens If You Die Without a Will?

If you die intestate (without a Will), inheritances are passed along bloodlines and not according to your wishes. If you have no Will, the money for your Minor Children will be paid into the Government Guardian’s Fund.

Disadvantages of Dying Without a Will:

  • You have no control concerning what belongings go to whom;
  • Your Minor Children’s money may be paid into the Government’s Guardians’ Fund;
  • You cannot save money on Estate Duties;
  • You cannot select who will manage your Estate and/or the Testamentary Trust;
  • Delays with the appointment of the Executor and delays with the process in general;
  • Your family may be left destitute;
  • A higher risk of litigation.

One of the biggest issues is the delay that may be encountered; your bank accounts and assets would be frozen, leaving your loved ones in financial distress. Think of the consequences of this on your family.

There are those people who believe that they don’t have enough money or possessions to make a formal Will. They think they have so little; why make a fuss with formalities. The truth is, what they should be thinking is, why not?

Benefits of Having a Will

  • You get to select the beneficiaries who will inherit from you;
  • You decide what each of the beneficiaries will receive;
  • You can plan contingencies, say you leave something to your children and one of your children dies with you? You can decide in advance how to distribute an inheritance if this happens; i.e. will the deceased child’s share go to your other children or maybe to your grandchildren?
  • You can qualify an inheritance. For example, your inheritance to your daughter may be excluded from a matrimonial claim;
  • You can plan your estate and reduce Estate Duties;
  • You may nominate Guardians for your Minor Children;
  • Your Will gives you the control and assurance that the people you love the most will be taken care of when you are no longer there;
  • It will enable you to make provision for a Trust to be set up for the protection of the inheritance for your Minor Children;
  • It is less likely to lead to litigation.

Legal Requirements for a Valid Will in South Africa

A Will must comply with the formal requirements of the Wills Act 7 of 1953. These include:

  • The Will must be in writing;
  • It must be signed by the testator;
  • It must be signed in the presence of two competent witnesses;
  • Witnesses must also sign the Will.

Your Will and Divorce

A bequest to your divorced Spouse in your Will, which was made prior to your divorce, does not necessarily fall away after divorce.

The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced Spouse will be deemed revoked if you die within three months of the divorce.

This provision is to allow a divorced person a period of three months to amend his/her will after the trauma of a divorce. If however you fail to amend your Will within three months after your divorce, the deemed revocation rule falls away, and your divorced Spouse will benefit as indicated in the Will.

You may also wish to review your Will alongside matters such as divorce financial planning, maintenance obligations, and guardianship of minor children.

What Fee Is The Executor Entitled to Receive?

The Executor is entitled to the following fee:

  • on the gross value of assets in an estate: 3,5%;
  • on income accrued and collected after the death of the deceased: 6%
  • This would be the case under usual circumstances. However, the Executor is
  • entitled to no less than R350 after dividing the deceased’s estate.
  • The Executor is also entitled to charge VAT on this fee if he is registered as such

or if the Agent appointed to assist in administering of the estate is registered as such.

Why Appoint An Attorney As Your Executor?

  • If you pass away and nominate a family member as the Executor, this will likely add to their stress in this mourning period. Most family members are not trained to be Executors and have no idea how to proceed once they have been appointed.
  • Attorneys are professionally trained and are bound by legal ethics and professional standards – this differs from banks and other financial organisations.
  • Suppose your estate is complex, and you have various assets and businesses, an ex-spouse, or a disabled dependent who requires maintenance. In that case, your attorney can assist you with your estate planning and drafting a valid Will.
  • Your overseas estate must also be administered if you have offshore assets. This must happen in terms of the foreign country’s laws. (You may then probably need two Wills);
  • You will enjoy the benefits of specialised experience and knowledge.

Frequently Asked Questions About Wills

What happens if I die without a Will in South Africa?

Your estate will be distributed according to the Intestate Succession Act.

Can a Will be challenged?

Yes, a Will may be challenged on specific legal grounds, such as lack of capacity or improper execution.

When should I update my Will?

After major life changes such as marriage, divorce, or the birth of a child.

Act now, and get your Will drafted. Do not delay. Tomorrow may be too late.

Contact us for a FREE Will (where we are appointed as Executors)

Guiding Principles for The Interpretation of Last Wills & Testaments

Read More

– Executor And Estate Administration Services In South Africa 
– How To Change Your Marital Regime
– The Myth Of Common Law Marriage In South Africa (Cohabitation)
– Antenuptial Contracts South Africa
– Divorce And Trusts: A Guide To Asset Protection
– Executors Of A Deceased Estate
– EB (Born S) V ER (Born B) N.O. V And Others V KG V Minister Of Home Affairs And Others
– Offshore Assets And Your Will And Testament
– Do I Need An International Will

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