Why your lawyer should be drafting your will
Jnr. Director | Attorney
When a person passes away without a valid will, the distribution of one’s estate is governed by the Intestate Succession Act 81 of 1987. It’s therefore extremely important that your will is drafted according to your wishes. It should also abide by the formalities as provided for in the Wills Act 7 of 1953 to ensure that the entire will is valid.
Due to the fact that the testator’s and/or testatrix wishes are reduced to writing and not reliant on verbal communication, a will can limit family feuds and unnecessary delays in the administration process of an estate.
Another important thing to consider when drafting a will is the aspect of the guardian for minor children and how the funds will be distributed to the minor children.
Many times, the wishes and preferences of the testator and/or testatrix are not understood and coherently brought to paper by the drafter of the will. This causes the distribution of the estate not to follow according to the wishes of the testator and/or testatrix.
The drafter of a will must have a thorough knowledge of the prevailing legislation to ensure that the wishes of the testator and/or testatrix are compatible with law and that the wishes of the testator and/or testatrix can consequently be lawfully enforced.
A will is a legally binding document that declares your wishes relating to your property should you die. If you have a valid will when you die, your estate will be divided between your beneficiaries as specified in your will. If you die without a will or a valid will, your property will be divided following the provisions of the Intestate Succession Act.
The Intestate Succession Act states that the deceased’s property will be divided amongst the following people:
- Spouse and children
- Siblings (if applicable)
- Parents (if applicable)
- To the extended family in degrees of relationships (if required)
There are various possible problems should you die intestate. This includes:
- The risk that assets may not be left to the person of your choice.
- It could also prolong the appointment of an executor and it may be someone that you would not have chosen if you had the decision.
- Extra costs may arise and conflict may occur amongst beneficiaries because there is no clarity on distribution of assets.
So, why should a legal practitioner be preparing your will?
There are many benefits to having your will prepared by a legal practitioner which include, amongst others, the following:
A valid will needs to adhere to strict legal requirements. This could impact the validity of a will. A legal practitioner has the proper knowledge to ensure all legal requirements are met.
Appointing an executor
A legal practitioner can advise you on appointing an executor and the possible costs involved also advise on problems which may arise with your will and assist your executor.
Legal practitioners with the required tax knowledge can advise on the tax implications of the will and refer you to an appropriate specialist.
The joint ownership of assets can be complex. A legal practitioner will be able to advise you on your rights and entitlements regarding ownership and possibly address issues before they arise.
Planning around minor children and assets earmarked for minors should be done in a very specific manner.
Legal practitioners will know how to ensure that the immediate expenses that your loved ones would need to settle, like funeral and household expenses and medical bills. Often these expenses can’t be delayed until the estate is finalised.
A change in your personal circumstances, such as marriage; the birth of a child or divorce can have an impact on how you wish your assets to be distributed after you die. Legal practitioners will ensure none of the above becomes a stress factor before or after your death.