No one likes to think about dying, let’s face it, but it is one of those life certainties, like taxes, that’s impossible to avoid! And while you can’t dodge the tax man, many people neglect to draw up a will, either because they have more pressing priorities, or because they want to avoid thoughts around death. As a woman once said to me, “If I draw up a will, I will die!”
Death is inevitable – the question is just when? Very few of us have fair warning, and if you die without a will in place, it can be devastating for your family.
Dying Intestate (without a valid will in place) means that your assets will be divided according to the Intestate Succession Act, starting with your spouse and children, and then to siblings, parents and even extended family members. This may not be how you wanted things distributed. It can also take up to two years to wind up your estate, and your family could be left destitute during this time, as all your assets (bank accounts, etc.) are frozen until the estate is wound up.
Drawing up a will is not difficult – you just need to make sure it is valid. The purpose of a will is twofold – to specify how your assets are to be divided upon your death, as well as to appoint an executor, who will settle any outstanding debts and distribute the remainder of the estate according to your wishes.
Contrary to popular belief, you don’t have to consult an attorney or professional to draw up your will – you can do it yourself from resources on the internet, or even simply write it down. However, to be regarded as valid, it must comply with certain criteria:
- It must be in writing.
- Two people older than 14 years of age must witness the will (these witnesses cannot be beneficiaries of the will).
- You have initialled every page of the will and signed the last page, in the presence of the witnesses.
- The witnesses have initialled and signed the will.
Getting an attorney to draw up your will has the advantage that they have all the necessary knowledge and expertise to ensure that your will is valid and can also advise you on any problem which may arise, as well as other aspects such as setting up a trust and estate liquidity.
There will be costs associated with administering your estate, and it is important to ensure that there will be liquidity (cash) in the estate for these costs, as well as any outstanding debts that need to be settled. If there is not sufficient cash in the estate, some of your assets may need to be sold to cover these costs.
Most banks and some trust companies also offer a will drafting service at no cost, provided they are appointed as executor of the estate.
Before drafting your will, give some thought to who will inherit what, who would take care of your minor children, whether you wish to be buried or cremated, and who should be the executor of the estate. This could be an attorney or a close family member of friend.
Once your will is drafted, keep it in a safe place and let your family members know where to find it. Keep it in a file or folder along with other important documents such as a list of your assets and investments.
It’s also wise to have a second copy in case of fire or theft, perhaps kept by your attorney.