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NATIONAL WILLS WEEK Saturday 10 September 2022
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What you must do to create a valid document When you die, your estate is divided among your family or the people you want to have inherit from you. The estate consists of your personal property and possessions, as well as any money or other assets. Who your property is passed on to depends on whether you have a valid will. If you have a valid will, the property is divided according to your wishes. If you die without a will (called intestate), your property will be divided up among your immediate family according to the laws of intestate succession. CREATING A VALID WILL If you’re older than 16, you can make a will stating who you want your property to go to when you die. For your will to be valid it needs to be made in the proper way. You also need to be mentally competent; this means that you must be able to understand the consequences of creating a will, you must be in a reasonable state of mind and remember what you own. For your will to be valid it needs to be drawn up correctly. You’ll need to be 16 years or older and make sure that: ● You’re mentally competent and that you understand the consequences of creating a will; ● The will is in writing; ● Two people older than 14 years of age witness the making of the will (these witnesses can’t be beneficiaries of the will); ● You have initialled every page of
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YOU CHOOSE: If you're older than 16, you can make a will stating who you want your property to go to when you die Photograph: SUPPLIED
the will and signed the last page, in the presence of the witnesses; and ● The witnesses have initialled and signed the will. IN YOUR WILL YOU CAN: ● Appoint an executor; and ● Divide up your property. An executor is the person who will make sure that your property is divided according to your wishes, as set out in your will. The executor also settles your outstanding debts. If you don’t choose an executor,
the court will appoint someone to be the executor; this is usually a family member. You can get a lawyer to help you to draw up a will or you can get an easy-to-complete will form from a stationery shop. DIVORCE AND YOUR WILL It’s important to amend your existing will within three months of your divorce unless you want your former spouse to inherit. If you don’t change your will after your divorce, your former spouse will
inherit according to your existing will. MAKE A FILE Keep your will in a file or folder along with other documents that might make it easier for the people you leave behind. This could include: ● A list of your investments; ● A list of your assets; contact details of the executor dealing with your will; and ● A letter of wishes could be included in the file which explains to your heirs why you bequeathed
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certain items to certain people or how you wish them to use their inheritance. Note: this isn’t a binding legal document, but it explains why you put something in the will. Make sure that you store all documents in a safe place like a bank or a secure safe at your house. DYING WITHOUT A WILL If you don’t have a valid will when you die, your property is divided according to the rules set out by the law. These provisions are generally fair and ensure your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationships. Some problems may arise if you die without leaving a will. These can include: ● Your assets not being left to the person of your choice; ● It can take longer to have an executor appointed; ● The executor who’s appointed may be somebody you may not have preferred; ● There could be extra and unnecessary costs; and ● There could be unhappiness and conflict among members of your family because there are no clear instructions on how to distribute your assets. Different rules apply under customary law. This information was found on the Western Cape Gov website.
MAKE SURE: If you don’t have a valid will when you die, your property is divided according to the rules set out by the law Photograph: SUPPLIED
Take advantage of National Wills Week The Law Society of South Africa National Wills Week will take place from September 1216. Why must you have a will? By making a will you ensure that your assets are disposed of in accordance with your wishes after your death. This privilege is called “freedom of testation”. Why should an attorney draft your will? Attorneys are professionals qualified in law. An attorney can advise you on any problem which may arise with regard to your will. An attorney has the necessary knowledge and expertise to ensure that your will is valid and complies with your wishes. Often a will is not valid because the person who drafts it does not have the necessary legal knowledge to ensure that the requirements of the law are met. What happens to your estate if you die without a valid will? If you die without leaving a valid will, your assets will be distributed according to the provisions of the Intestate
Succession Act. The provisions of this Act are generally fair and ensure that your possessions are transferred to your spouse and children, and where applicable, to siblings, parents, and if required, then to the extended family in terms of degrees of relationships and those that were dependent on you for financial support. BUT, the following problems may arise if you die without leaving a will: Your assets may not be left to the person of your choice;It can take a long time to have an executor appointed. The executor who is appointed may be somebody you may not have chosen yourself; andThere can be extra and unnecessary costs. There can be unhappiness and conflict among members of your family because there are no clear instructions on how to distribute your assets. For more information or for assistance call the Law Society of South Africa on 012-3668800 or email us at lssa@lssa.org.za