WHAT CAN HAPPEN TO YOUR FAMILY IF YOU HAVE NO WILL?
Between 70 and 80 percent of South Africans do not have a will to protect their loved ones in the event of their untimely death.
Sophia Steyn
Admitted Attorney
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Unfortunately, this will not only burden the surviving family members with unnecessary emotional and financial stress but will also delay them gaining access to their rightful inheritance.
So it is essential to prioritise having a Will drawn up as soon as possible.
If you don’t, what difficulties could befall them? And how long would it take them to regain the stability and security you worked so hard to give them.
Appointing an executor
South African law affords you the freedom of testation, allowing you to distribute your assets as you wish. You can also appoint an executor to take control of those assets when you die, settle debts in your estate and distribute the remainder in terms of your Will.
Without a Will, there is no clear direction on what must be done, and the matter must then be decided by the Master of the High Court according to the Intestate Succession Act 81 of 1987.
By law, every death must be reported to the Master of the High Court. This means the executor appointed in your will must submit an inventory of all your assets to the Master within 14 days after the date of your death. They must also submit all required forms under Chief Master’s Directive 3 of 2006.
If you die intestate (without having made a Will), then no executor was appointed. So your grieving next of kin will be required to submit the inventory, although they may nominate an executor themselves.
However, the Master of the High Court can, at their discretion, reject your heirs’ nominee and appoint another of their own choosing, known as an executor dative. The Master will also appoint an executor dative if your heirs do not nominate their own executor.
These processes can be time consuming, especially if your heirs cannot reach consensus on who to appoint as executor and the Master is forced to appoint an executor dative.
Greater complexity
When the Master appoints an executor of an intestate estate, they may also request that the executor put up security. However, with a Will, you can include a provision to prevent the Master from making such a request and spare you family the extra cost.
If you have no Will, your estate will devolve according to the rules of the Intestate Succession Act 81 of 1987. Intestate succession is based primarily on blood relationships. Even if loved ones or close family and friends know what your last wishes were, the Act will be followed rigorously to determine who is entitled to inherit and how the estate should be divided.
Furthermore, your assets may need to be liquidated to fulfil the requirements of the Intestate Succession Act. This means that your car, house, and more may be sold to distribute your estate according to the rules of the Act.
Winding up the estate this way can become exceedingly complicated with greater potential for delays and distress.
Guardianship and inheritance
If you die without a Will and no parent remains for your surviving minor children, this will lead to doubt as to who must be appointed as their guardians and how they should be taken care of.
A family member would need to apply to the High Court to be appointed as their guardian. This can be a lengthy and costly process for that family.
It will also place an emotional burden on your children, especially when there is a dispute among the family regarding who should be appointed as their guardian.
The Master of the High Court, as the supreme guardian of all minors, will make the final decision after taking into account what (or who) will be in your children’s best interest.
It is hard to imagine the extreme stress and uncertainty they would face, and that of family and friends just trying to do the right thing.
Your children’s inheritance would be held by the Guardian’s Fund at the Master of the High Court until they are eighteen years old. Family members and friends who care dearly about their well-being will not be able to protect their assets by any other means.
For example, no trust could be created to benefit your children and no conditions will be attached to the benefits of the estate to protect them.
Limits of jurisdiction
The Intestate Succession Act only applies to deceased persons domiciled in South Africa at the time of death. If the deceased was domiciled in another country, the laws of that country will apply.
It is therefore advisable to have a separate Will for South African assets when you settle in another country, intending to reside there permanently.
Make your will a priority
Death is inevitable but you can give your family peace of mind by taking the time to draw up a carefully structured Will that satisfies your and their specific needs.
Most importantly, avoid template Wills that only cover the impersonal basics, as offered by some financial services institutes. Instead, do your research and find a legal expert who specialises in this area and respects your unique requirements.
Embrace your right to freedom of testation with clear instructions and no uncertainties regarding the distribution of your assets and the protection of your loved ones.
Draw up your Will today and they will be eternally grateful, fondly remembering you just as you would want them to.
