Many people don’t think about creating a will as it is seen as something to create when one is ill or getting older in age but that should not be the case as anyone at any age can and should create a will because as the saying goes “it’s always better safe than sorry to create a will earlier then later.”
When creating a will it is of the utmost importance that the Individual who is asking an attorney to draft their will must also understand what the document contains as well as the consequences that are attached to such clauses within the document itself.
This article will therefore discuss the answers to the most frequently asked questions that we as attorneys receive and the importance of such questions.
What is a will?
A will is a document which will encompass the management necessary to execute an estate and all that which falls into an estate such as assets and liabilities which will be distributed according to the wishes of the person whom the will is drafted on behalf of.
When should I start thinking about writing or creating a will?
Usually one would start thinking of the need for a will once they have accumulated any assets which one finds worth distributing once they die.
This does not mean to say that only when one is ill or old one makes a will, allot of the time people create wills when they have children or get married so that if anything were to happen to them their legacy as it were would carry on even after they have died or in order to help family support themselves financially, especially in the case where the sole bread winner dies.
What happens if I don’t have a will?
If someone dies without a will this means that their assets will devolve unto their next of kin and other family members as there are no specific wishes of the deceased or when the will is invalid because it does not follow the requirements of the Administration of Deceased Estates Act. This is called intestate succession.
This process is usually more time consuming as it will take longer to administer and it places a disadvantage on certain people who may not inherit from the estate as you might have wanted or intended them to.
What makes a will valid in terms of our law?
A will MUST be in writing which must be dated and signed by the person whose will it is. This is usually witnessed by two other people. A will may in certain circumstances be “signed” by way of thumb print and or seal if one is mentally or physically unable to sign, they must however understand the will as a whole before any “signature” may take place.
When can a will be challenged?
One can challenge a will for many reasons such as there is a question to whether the person had drafted their will in duress, where it is questionable whether such person is incompetent or was unable to comprehend what is in the will when drafting the will or where one did not meet the proper requirements to make such will legal and valid according to the law.
Where are wills kept?
As attorneys when we have drafted a will on behalf of a client we ask the client whether they are indeed happy with such will. Thereafter the client will sign the will which will be witnessed. Once that process is completed the file is put into securities where it is safe against theft, fire or any act of God.
What is a testamentary trust?
A testamentary trust is a trust created within a will which would hold property for the future in order to benefit another person whom you nominate. For example most people hold money or assets in trust for their children for when they reach the age of 25 years old as they will be more competent to utilize it at that age.
What is a living will?
A living will is a separate document which is usually attached to a will which states that in the event that someone is hospitalized and medical intervention will not save one’s life for the hospital to cease any procedures which will only prolong one’s life and or suffering. This usually occurs when one is terminally ill or permanently unconscious.
How many executors and or trustee’s should I have?
By law one should have at least two executors and if there is a testamentary trust created at least two trustees. Usually executors and trustees are the same people but there MUST be a minimum of two each.
What happens to my children if they are minors when I die?
Parents are both natural guardians of children so whether you are married to your child’s other parent or not is irrespective. If one person dies, the child will be in the care of the other parent. However it is important that if both parents die for example simultaneously, that another person such as a family member or friend is nominated to care for the child.
In conclusion this article clarifies the most important aspects to a will as questioned by clients. One of the most important takeaways that we like to instill to our clients is that one should create a will as soon as possible as it is not dependent on age. One must be competent and of sober mind when creating their will and most importantly the client MUST understand their will when signing their will as to avoid future complication’s.
For more questions or to create a will with us please don’t hesitate to contact SCHWENN INC today at 0315631874 or email us on Charmaine@schwenninc.co.za.
GUEST AUTHOR BIO
AttorneySchwenn Incorporated Attorneys & ConveyancersOver the last two decades, Charmaine has grown a loyal following of clients. As a former partner at Tate, Nolan and Knight Inc., Charmaine has worked with clients across a diverse spectrum of industries and needs.