A key instrument in the management of your affairs post-death, a carefully drafted will provides direction and clarity to your loved ones and gives you peace of mind that your instructions and wishes will be implemented. Accordingly, it is essential to consult an experienced attorney specialising in estate planning to draft a will that accurately reflects your wishes.
Control over the distribution of your assets
A will enables you to specify the distribution of your assets, including immovable property, savings and investments, motor vehicles, artwork, furniture, and sacred family heirlooms, in accordance with your preferences. Under South African law, a central feature of testation is that the wishes of the testator/testatrix are of paramount importance. As such, the courts adopt an interpretation of a will that gives effect to these wishes, unless there are compelling reasons to do otherwise.
Absent a valid will, however, your estate will devolve according to the laws of intestacy, which may not align with your wishes. The Intestate Succession Act establishes rules to determine how a deceased’s estate must be distributed. For example, if you are married out of community of property – or have a life partner – and children, your spouse/life partner will inherit a ‘child’s share’ or R250 000.00, whichever amount is larger, and your children will inherit the residue of your estate in equal shares. In this instance, your parents, siblings, extended family, and close friends will receive nothing. Accordingly, executing a will enables you to clearly designate which beneficiaries must inherit specific assets and to appoint residuary heirs.
Ability to nominate an executor
Drafting a will gives you the opportunity to expressly nominate an executor to administer your estate and carry out your wishes when you pass. Under the Regulations to the Administration of Estates Act, only a select category of persons, including practising legal practitioners and accountants, may be appointed by the Master of the High Court to administer a deceased estate. Accordingly, it is advisable to appoint an experienced and trusted attorney to administer your estate. Alternatively, an executor may instruct an attorney to act as agent, subject to an agreed share of the executor’s fee.
Implement effective estate tax planning
Estate duty is levied on the dutiable value of a deceased estate at a rate of 20% on the first R30 million and 25% on the amount exceeding R30 million, minus a primary rebate of R3.5 million. However, the Estate Duty Act incorporates various exemptions to reduce estate duty payable. For instance, section 4(q) of the Act allows the value of any benefit received by a surviving spouse to be deducted from the estate. To capitalise on this deduction, you could bequeath your entire estate to your spouse in your will, or bequeath immovable property to your child, subject to a usufruct in favour of your spouse. In this sense, a will forms part of a broader estate plan to minimise estate-related taxes, ensuring that a greater portion of your assets are distributed to your beneficiaries.
Avoid fractious family disputes
Clearly articulating your wishes in a will can significantly minimise misunderstandings regarding the distribution of your assets and reduce any potential conflicts among family members. Ultimately, this contributes to the smooth administration of the estate. To facilitate the resolution of anticipated disputes and preserve family unity, your attorney may pre-emptively incorporate specific dispute resolution clauses in your will. For instance, in the event of disagreement, the will could provide for the appointment of a mediator.
Appoint a guardian for your minor children
For parents of minor children, it is essential that your will not only outlines the distribution of your assets but also designates a responsible and trusted adult to assume the role of guardian for your children. While this is especially necessary for single parents, it is also crucial in the event that both parents pass away simultaneously.
Appoint a trusted individual to care for your animal companions
For many, our animal companions occupy a very special place in our lives. Absent specific instructions, your beloved pets may be left to fend for themselves in the event of your unexpected death. Fortunately, it is both possible and advisable to leave funds for their care in your will to ensure that their accommodation, nutritional, and veterinary needs are met. While you cannot bequeath assets directly to nonhuman animals, you can specify that the proceeds from the sale of an asset be used for their care. Since they cannot manage funds themselves, it is crucial to nominate a trusted individual to manage the money designated for their care.
Update and accurately reflect any life changes
It is both imperative to have a will and to update it to reflect significant life changes. Major life events such as marriage, the birth of children, or divorce impact your estate planning requirements. For example, the birth of a child may necessitate various amendments to your will, including nominating an additional beneficiary or adjusting guardianship arrangements. Comparatively, divorce usually means removing your ex-spouse as a legatee or residuary heir. Similarly, changes in your financial status, such as the acquisition of property, may necessitate a revision of your will to accurately mirror your current wishes.
In summation, having a will is an integral component of estate planning and ensures that your wishes are respected and implemented. For more information or to set up a consultation, contact our estate planning specialists at estates@stbb.co.za.
