Most people think will planning starts with one question:
“Who gets my stuff when I die?”
It is much bigger than that.
A properly planned will can help you decide what happens to your assets, who should administer your estate, what should happen to an inheritance intended for a minor child, and, in certain circumstances, who you would like to care for your child if you are their sole guardian.
Without a valid will, your estate is distributed according to the rules of intestate succession rather than according to your personal wishes.
That is why will planning is not just something to think about when you are older or have accumulated significant wealth.
It is about making your wishes known while you can.
What is will planning?
Will planning is the process of deciding what you want your will to achieve and making sure the document properly reflects those decisions.
That can include deciding:
- Who should inherit from your estate
- What particular assets or amounts should go to particular beneficiaries
- Who should administer your estate
- What should happen to an inheritance intended for a minor
- Whether a trust should form part of your estate planning
- What should happen to specific assets
- Whether your will still reflects your current circumstances
A will is a legal document that sets out what should happen to your estate after your death. Your estate includes your assets and liabilities at the date of death.
Good will planning therefore starts before anyone puts pen to paper.
You first need to understand what you own, who matters to you, what responsibilities you have and what you want your estate plan to accomplish.
If you have been meaning to draft a will, your current will is outdated, or your family and financial circumstances have changed, speak to PM Attorneys about your will planning.
Why is having a will important?
If you die without a valid will, your estate is dealt with under the Intestate Succession Act 81 of 1987.
That does not mean your assets simply disappear or automatically go to the state. The law sets out who may inherit and how the estate is distributed according to the circumstances of the deceased.
The problem is that the legal rules may not produce the outcome you would have chosen yourself.
A will gives you the opportunity to make those decisions.
It can also make your wishes easier for your family to understand and give your estate an established document to work from when the estate is administered.
This is particularly important if you have:
- Children
- Property
- A business
- Investments or savings
- Significant debts
- A blended family
- Multiple beneficiaries
- A customary or other recognised marriage
- Assets that you want to leave to particular people
The more complicated your circumstances are, the more important proper planning becomes.
What should you think about when planning your will?
Before drafting a will, take a step back and look at your life as it is.
- Who do you want to inherit?
Start with the people you want to benefit.
This could include:
- Your spouse
- Your children
- Other family members
- Friends
- Charities or organisations
- Other people who are important to you
You should think carefully about who you are naming and how you identify them.
If circumstances change later, your will should be reviewed and updated rather than assuming an old document still reflects your wishes.
- What do you want each person to receive?
Your estate is not necessarily just a bank account.
You may have:
- A house or other property
- Vehicles
- Investments
- Business interests
- Savings
- Personal belongings
- Insurance-related benefits
- Other valuable assets
You may want certain assets to go to beneficiaries.
The important thing is to make your intentions sufficiently clear for your wishes to be properly understood and administered.
- Who should administer your estate?
Your beneficiaries do not simply take your assets immediately after your death.
A deceased estate needs to be administered.
The person responsible for administering the estate is generally the executor, who is appointed through the Master of the High Court. The executor deals with the administration process, including the assets, liabilities and distribution of the estate.
Choosing an appropriate executor is therefore an important part of will planning.
The Master specifically notes that estate administration involves complex legal requirements and recommends that appropriate assistance be obtained where necessary.
You can nominate an executor in your will, but the nomination is not the same as the Master formally appointing that person.
What if you have minor children?
This is one of the reasons parents should not treat will planning as an exercise in dividing up possessions.
If you have minor children, you need to think about what happens to them and their inheritance if you die.
For example, if you are the sole guardian of a minor child, the Master advises that you can indicate in your will who you would like to be appointed as the child’s guardian after your death.
You should also consider what happens to an inheritance left to a minor. Depending on your circumstances and the structure of your estate plan, this may involve a trust or the Guardian’s Fund. This is an area where getting proper legal advice matters because the right approach depends on your family circumstances and what you are trying to achieve.
A will should not simply say who gets the money. It should consider how that inheritance will be managed.
What about a family home or other property?
Property is often one of the biggest assets in an estate.
If you own a home, investment property, land or other immovable property, your will should form part of a broader estate-planning conversation.
Think about:
- Who you want to inherit the property
- Whether there is still a bond over it
- Whether another person owns a share of it
- Whether you want the property sold or transferred
- Whether a beneficiary could realistically afford the costs associated with keeping it
- Whether the property forms part of a business or trust structure
The goal is not simply to write:
“My house goes to my child.”
The real question is:
“What needs to happen to this property, and what are the consequences of that decision?”
That is where proper estate planning can make a significant difference.
Do you need a trust as part of your will planning?
Not everyone needs a trust.
A trust can be useful in certain estate-planning circumstances, but it also comes with its own legal and administrative requirements.
South African law recognises different types of trusts, including inter vivos trusts and testamentary trusts, and the administration of trusts is governed by the Trust Property Control Act 57 of 1988.
If you have minor beneficiaries, substantial assets or family circumstances, a trust may be worth discussing as part of your estate plan.
But it should not be added simply because someone told you:
“Everyone needs a trust.”
Your will, trust arrangements and overall estate plan should work together based on your actual circumstances.
What makes a will valid in South Africa?
This is where a DIY will can become risky.
South African law sets formal requirements for wills. The Master of the High Court explains that a will must be in writing and that the testator’s signature and witnessing requirements must be met. There are also specific requirements concerning signatures on multiple-page wills and witnesses.
There are also circumstances where people who benefit from a will should not act as witnesses because this can affect their entitlement.
In other words:
Writing down what you want is not the same thing as properly executing a valid will.
If a will does not comply with the formal requirements, legal complications can arise.
There are circumstances where a court can order that a document be accepted as a will despite formal defects, but that is not something you want your family to have to deal with after your death.
Getting a will properly drafted and executed from the beginning is usually a much better approach.
Keep the original will safe
This sounds like a small detail.
It is not.
The Master of the High Court specifically advises that the original signed will should be kept safe. If the original cannot be found after death, a certified copy does not automatically solve the problem. The Master states that where no original will is available, an application to the High Court may be necessary for a copy to be accepted as a valid will.
So once your will has been signed:
Do not put it somewhere so safe that nobody can find it.
Make sure the relevant people know where the original is kept.
When should you update your will?
A will should not be treated as a document you write once and forget about.
Your circumstances can change.
It may be time to review your will after:
- Getting married
- Getting divorced
- Having a child
- Adopting a child
- The death of a beneficiary
- The death or unavailability of your nominated executor
- Buying or selling significant property
- Starting or selling a business
- Major changes to your financial circumstances
- Changes in your family structure
- Creating or changing a trust
- Deciding that your existing beneficiaries should change
You do not necessarily need a completely new will every time something changes. Depending on the circumstances, the appropriate legal document or amendment may differ.
The important part is not leaving an old will in place simply because you have not got around to reviewing it.
Common will planning mistakes to avoid
- Leaving your will until “later”
- Using a template without understanding it
- Forgetting about minor beneficiaries
- Choosing an executor without thinking about the job
- Forgetting about assets you acquired later
- Keeping the original somewhere nobody knows about
Will planning is about more than dividing your estate
A good will answers an important question:
“What do I want to happen?”
Good estate planning goes one step further:
“How do we make that happen properly?”
That may involve your will, trusts, property, business interests, beneficiaries, minor children and the eventual administration of your deceased estate.
At PM Attorneys, we can help you look at those pieces together rather than treating your will as an isolated document.
Our wills, trusts and estate planning services include assistance with:
- Drafting and reviewing wills
- Estate planning
- Trust registration and related planning
- Deceased estate administration
- Reporting deceased estates
- Estate-related legal matters
The right plan will depend on your circumstances.
You do not need to arrive with the answers. You just need to start the conversation.
Frequently asked questions about will planning
At what age can I make a will in South Africa?
A person aged 16 or older can generally make a will, subject to the legal requirements and capacity requirements applicable at the time the will is made.
Can I write my own will?
Yes, you can draft your own will, but it must comply with the applicable formal requirements to be accepted as a valid will. The Master of the High Court recommends that wills be drawn up by an expert such as an attorney or trust company.
Do I need a trust in my will?
Not necessarily. A trust may be appropriate in certain estate-planning circumstances, but whether one makes sense depends on your assets, beneficiaries, family circumstances and objectives.
Who should I appoint as executor of my will?
You can nominate an executor in your will. However, the Master of the High Court makes the formal appointment. Because administering an estate involves legal and administrative responsibilities, you should consider whether the person or professional you nominate is appropriate for the role.
What happens if the original will cannot be found?
The Master states that a certified copy of a will cannot simply be accepted in place of the original. Depending on the circumstances, a High Court application may be necessary for a copy or other document to be accepted as a will.
You do not need to wait until you have a complicated estate to start planning.
Whether you are writing your first will, reviewing an existing one or dealing with a change in your family or financial circumstances, PM Attorneys can help you understand what needs to be considered.
Plan it properly. Put your wishes in writing. Give your family one less thing to figure out later.
