Everyone dies with a Will… Myth or Fact?

It sounds comforting, doesn’t it?

“Don’t worry — if you don’t make a Will, the law writes one for you.” Well… yes. But not in the way most people think.

In South Africa, if you die without a valid Will, your estate is distributed according to the Intestate Succession Act 81 of 1987. In our firm, we refer to this as the “default” Will.

Accordingly:

1. You make your own Will, and failing which;

2. You do not die without a Will, rather, the “default” Will, (the Intestate Succession Act), will apply.

But here’s the catch: It’s not personal. It’s a fixed formula.

So, who gets what under the “default” Will?

The Act sets out a strict order of inheritance. It does not consider your personal wishes, relationships, or intentions.

Here’s how it works:

If you are survived by a spouse and children

Your spouse receives either:

• An amount not less than R250 000.00, or

• A child’s share of the estate, whichever is greater.

• The remainder is divided equally among the children.

If you are survived by a spouse but no children

• Your spouse inherits everything.

• If there is more than one spouse, they inherit equally.

  
  

If you are survived by children but no spouse

• Your children inherit equally.

• If a child is predeceased and left children, these children (grandchildren) will also inherit.

If you are not survived by a spouse or children

• Your parents inherit.

• If either of your parents have predeceased, their share passes to your siblings.

• If there are no siblings, the estate passes to extended family.

If you are not survived by any relatives

The estate is paid to the Guardian’s Fund where it will remain for 30 years and if not claimed, then it is lost to the state.

The real question: Is the “default” Will good enough for you?

That depends entirely on your personal circumstances and wishes.

Because while everyone may technically die with a Will, the “default” Will may not reflect your wishes.

A properly drafted Will allows you to:

• Choose who inherits your assets

• Appoint Guardians for your minor children

• Create a Testamentary Trust to protect minor beneficiaries or persons who are mentally incapacitated

• Nominate Executor(s) and Trustee(s) of your choice

• Make bequests of sentimental items

• Make charitable bequests

• Prescribe Executors fees

• Dispense with security

• Preclude inheritances from forming part of the consequences of a marriage

In short, it allows you to decide, not a formula.

To sum up

Yes, technically, everyone dies with a Will.

But only some people die with a Will that truly reflects their wishes.

A “default” Will follows a rigid legal formula. A professionally drafted and regularly updated Will ensures that your wishes and intentions are correctly recorded.

Estate planning is not about preparing for death. It is about ensuring that your wishes allow for the administration of your estate in a dignified and practical manner.

Your Will is a living document and has consequences for those who survive. Make sure your Will leaves a legacy of love.

If you do not have a Will, now is the time to consult an expert to do so.

Article written by: Stacey Pardesi