Do you know where your original Will is?

2017-11-01 06:00

UPON your death, your executor is required to report your estate to the Master of the High Court.

The person in possession of your original Will is required to forward your original Will to the Master.

If no will can be located, you will be presumed to have died without a Will, in which event there is an act passed by Parliament, namely the Intestate Succession Act, which provides how your estate will devolve.

Should this happen, your marital regime will also make a difference as to how your estate will devolve upon your death.

For example, if you are married out of community of property, your assets and liabilities are your own.

However, if you are married in community of property you have a joint estate with your surviving spouse, and you share all your assets and liabilities.

When you are married in community of property, your surviving spouse, by operation of law, receives an undivided half share of the joint estate before your estate is divided among your heirs, either in terms of your Will, or in terms of the laws of intestate succession where you have died without a will.

This means that where the deceased was married, the surviving spouse is entitled to R125 000 or a child’s share, whichever is the greater.

If you are married according to African customary laws and you have more than one spouse, each spouse is entitled to a R125 000 or a child’ share of your estate, whichever is the greater, upon your death.

As can be seen from the above examples, dying without a Will or being deemed to have died without a Will, means that the law dictates how your estate must devolve.

If a copy of your Will can be located, but the original cannot be found, an application to court will be required to ask the court to direct the Master to accept the copy of your Will.

The Master has no discretion to accept a copy of your Will and requires a direction from the court before he can accept a copy of your Will.

A court application is costly and delays the administration process of your estate.

There is no central registry of Wills. Accordingly, when you make a Will, it is advisable to ensure that the original Will is kept in a safe place and those who are closest to you know where to find it.

Generally, attorneys, banks and financial institutions who offer the service of drawing Wills, also offer the service of keeping your Will in safekeeping for you.

Most attorneys, who offer such a service, do not charge a fee to keep your Will in safekeeping.

Take the time to find your Will and make sure it is up to date. Make sure that the person or company you have appointed as your executor is still available to finalise your estate.

Should you need assistance in updating your Will, please don’t hesitate to contact us.

We have a team of attorneys who are happy to assist you.

- Margaret McCullough.

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