Wills – Passing without a will, DIY, Assets overseas, who may inherit

THE IMPORTANCE OF A WILL

In our modern day and life we are busy rushing from point A to Z and we seldom take a moment and possibly avoid thinking of our own mortality. The danger that lies therein, is that we fail to do the necessary estate planning. What happens to all the things you have accumulated in your lifetime upon your death?

When one passes away without leaving a will, your estate will be divided in terms of the laws of intestate succession. In essence this means that the state and relevant laws decide who your heirs are and what they will inherit.

A will is of great importance as it is a formal statement of your wishes based on the principle of freedom in as far as our legal system allows. A will grants you the freedom to choose your heirs and what they will inherit; who the executor of your estate will be; who will be the guardian of your minor children and creates legal certainty. For one’s own peace of mind and avoiding a hassle it is advisable to consult a professional when drafting a will.

Here are some do it yourself tips for drafting a will (although we highly recommend that you let a professional practitioner draft your will): (1) a will must be in writing; (2) when it is longer than 2 pages, each page must be signed by the testator / testatrix in the presence of 2 competent witnesses and the last page must be dated. The law does not prescribe the specific contents of a will, hence, the inclusion or exclusion of a clause will not render it invalid. The content should indicate the bequeathed assets as well as the beneficiary of the assets.

Any person who is alive at the date of death is competent to inherit from the deceased. This includes, but not limited to unborn children being conceived before the deceased’s death, extramarital children and adopted children. The testator / testatrix can bequeath an asset to a class of people, for example the testator bequeaths half of his estate to all his grandchildren.

Should you have assets abroad it is advisable to have separate wills for each country where you own assets. Due to the tax and estate planning laws being different in each country, it is unlikely that a South African legal practitioner will have the necessary expertise and knowledge to deal with the assets in accordance with another country’s laws. However, there are international conventions which allows one to deal with international property where the testator / testatrix has properly executed a will, which complies with all the formalities of the laws of the country he / she was residing in at the time of execution of the will.

Your assets hold both financial and sentimental value and a will affords you the opportunity to distribute your hard-earned assets is a manner that is in line with your wishes. Please feel free to contact our talented team for further information or guidance in regard to your Estate Planning.

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Property Law, Conveyancing, Commercial Law, Contract Law, Drafting of Wills,
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