BY: MOGALE SEKGALA 29 AUGUST 2022
A will can be defined as a declaration of what a person wishes to have happen to his or her property after his or her death.
There are different types of wills, and each type will be briefly discussed below.
SIMPLE/ ORDINARY WILL:
A simple or ordinary will is one that has no special characteristics or features. It simply sets who will receive the assets and name a guardian for any minor children if applicable.
JOINT/ MUTUAL WILL:
A joint or mutual will is one that is concluded between two or more parties, usually spouses. There is, however, nothing stopping people who are not married to each other from concluding or executing a joint or mutual will. The mutual or joint will is, however, treated as a separate will of each party as if it applies only to his or her separate estate.
TESTAMENTARY WILL/ TRUST:
In the case of a testamentary trust a person will include in his or her will provision for the creation of a trust. This is normally done where the testator (person creating the will) has minor children or wishes to benefit someone who cannot handle their own affairs.
Provisions can be put in place where on the fulfilment of certain conditions the trust will terminate and the assets to be distributed to the beneficiaries. This is normally the case where the minor children have since reached the age of majority.
LIVING WILL:
Unlike the first three wills, a living will does not deal with the distribution of ones assets after death. A living will is a declaration or an advance directive in which a person expresses his or her directives to his or her family or doctor regarding end-of-life medical care and treatment. Through a living will, a person can for instant refuse consent to any medical treatment and attention which will keep him or her alive by artificial means where there is no hope of his or her survival (irreversible vegetative state) when he is no longer competent to express this instructions.
-----------------------------
As mentioned in the definition of a will, a person gets to choose what happens to his or her property when they die and as such a will forms an important aspect of a person's estate planning.
As discussed in the previous articles a person’s married in community of property gets to decide on what happens to his or her share (50%) of the joint estate.
Dangers of dying without a Will
If a person dies without a Will, his/her deceased estate (the assets s/he owned at time of death) will be distributed in terms of the Intestate Succession Act (“Act”). The dangers of dying without a Will or valid Will in terms of the law of interstate can be summarized as follows:
- The assets will be distributed to your closest relatives in a pre-determined order which could result in family members unduly benefitting from your estate;
- The state will appoint an executor to wind up your estate, keeping in mind that this could be a complete stranger with no understanding of your family dynamics or personal circumstances;
- Where a parent dies, the other surviving parent will be the legal guardian of the minor child. However, where a person dies intestate and there is no other surviving parent, the state will appoint a guardian for the minor child, which is hardly ideal;
DID YOU KNOW / TOP TIPS:
*** 70-80% of South Africans do not have a will.
***Anyone over the age of 16 is capable of writing a will provided that they are mentally capable of understanding the consequences of their actions at the time.
***Winding up a deceased estate is a specialist area so give careful thought to the appointment of an executor. While you may be tempted to nominate a family member or close friend, this is not always advisable given the legal and financial complexities involved.