Last Will and Testament

A Will will give an individual the freedom to distribute his or her assets to beneficiaries of his/her choice after his/her passing. Should one not have a Will, the intestate law will govern the administration of the Estate in so far as to appoint the beneficiaries of your estate.

A Will must be drafted and sign according to the Law of South Africa, otherwise, yours will be null and void.

Should you already have a Will but your circumstances have changed or you wish to appoint other beneficiaries, this can be done by signing a new Will with a specific clause to revoke all previous wills signed. If this is not done, your estate can be administrated by more than one will that can lead to various problems.

The Executor of the Estate is the person who will have the right to make certain decisions in regard to the administration of your estate, so therefore a Person must be appointed who you can trust.

Beneficiaries of your Estate or a Professional Person (example an Attorney) can also be appointed as the Executor. In most cases, your Executor will appoint a Professional Person/Agent.

The Executor of the Estate is entitled to a nominal fee for the administration.

Any person of any age can be appointed as Beneficiaries of your Estate. You can also appoint various beneficiaries for one asset and state the percentage of ownership that needs to be transferred.

Should you appoint a minor child as the beneficiary for your estate or a portion thereof, we advise a trust to be formed, where the assets can be transferred to. Please see Paragraph in regards to Minor Children for more information.

What if one or more of the Beneficiaries pass away before you? You can appoint Beneficiaries in the alternative.

If a Beneficiary is married in Community of Property, the inheritance can be excluded from their Communal Property.

You can also make a provision where spouses leave their estate for the surviving spouse, and the surviving spouse passes away within a certain period (example 30 days) that your estate bequeath to another beneficiary. This prevents that the assets need to be transferred to the spouse deceased estate and then be administrated in regards to the deceased spouse will. This saves a lot of time and also costs.

Where there is minor children provision need to be made for them in regards to who is appointed as their Guardian and who will administer their inheritance.

A Guardian is a person who is appointed to look after the Minor Children once you have passed away. This can be a friend or family member who you trust to look after your child in your child’s best interest.

It is best to create a trust in your will where you have a beneficiary that is a minor. You will also appoint a Trustee that will administer the Trust. This can be the same person as the Guardian of the Minor Children.

If your will does not make provisions for a trust, all benefits that the minor child will be entitled to will be transferred to the Guardian Fund.

The disadvantage of the Guardian fund is:

-only cash can be transferred. If you created a trust in your will, your immovable property (house) can be transferred to the trust.

– The Minor Child will receive his/her inheritance at the age of 18 years. With a trust, you can determine at what age you wish your child to receive the benefits.

– Maintenance claims: Maintenance can be claimed from the Guardian Fund. The process is complicated and the Master of the High Court will only grant certain claims. Where the Trustee, of the Trust that was created in your will, has a variety of claims for maintenance that he/she can prove, should it be in the interest of your child and the trust. If the Trustee and the Guardian of the Minor is the same person, there is more understanding in regards to the maintenance that is required for the Minor Child.