LAW CORNER Supporting National Wills Week

2015-09-02 06:00

WHAT is a Will and why do I need one?

A Will is a legal document which contains the wishes of the person making it. Any person of 16 or more, provided he or she is mentally capable of appreciating the nature and effect of the contents may make a Will.

A Will is the only way in which a person can ensure their estate will be divided according to their wishes after their death.

Dying without a Will has major implications for both the administration of the estate as well as the family left behind. If there is no valid Will at the time of death, the estate will simply be inherited according to intestate rules. Assets cannot be distributed until all the rules regarding intestate succession have been adhered to. If there is no Will and the value of the estate is more than R125 000, the Master of the High Court could convene a meeting of family members in order to appoint an executor, but in practise, other methods of nominating an executor are often used. During this time, the estate is frozen while it is being wound up, and dependant heirs may not have access to funds during this time.

The Master may also require the executor to provide security. This will usually take the form of a security bond for the value of the assets reflected in the preliminary inventory. A Will usually contains a clause specifically nominating an executor and exempting the nominated executor from having to furnish security. Your Will should reflect your current circumstances and intentions. The following factors should be used to determine when your Will may need reviewing:

• marriage, separation or divorce, or entering into a new relationship;

• birth or death of children, grandchildren or other close relatives, or other changes in your family circumstances;

• significant changes to the value of your estate;

• substantial changes to the manner in which you own assets, including the formation of a family trust or the establishment of a self managed superannuation fund;

• if you enter into a new business or change your existing business structure;

• changes in your residency status or of any of your intended beneficiaries; and

• retirement from full-time employment.

Should you have minor children, it is imperative to have a clause in the Will that provides for the creation of a trust for the children.

This will ensure that assets will be protected for their benefit and distributed to them in accordance with your wishes.

It is also important where you have minor children to appoint guardians for your children. Guardians are needed up until your child reaches the age of majority

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