Many people are under the impression that when we pass away, our assets will automatically devolve upon our family members and therefore it isn’t necessary to have a Will in place. If you pass away without a Will, your Estate will be divided based on the provisions of the Intestate Successions Act and not based on what your wishes may have been. Having a Will in place therefore has many benefits, some of which will be explained below.

Wills limit family disputes

In the case of a well written Will, family disputes can be avoided and each beneficiary will know exactly what assets he or she will inherit from the estate. Seldom will you get family members who will contest the Will as not valid. If they contest the Will, a lengthy and costly process must be followed in order for the Master of the High Court to declare the Will as not valid.

Minor children and children with special needs

When having minor children in an estate, the Testator/Testratix can decide who will be the guardian of the children and it can be included in your Will. A testamentary trust can be created specifically for minor children or children with special needs that do not have the capability of administering their own finances. Trustees will be appointed to administer the funds on behalf of the children as per the terms and conditions stipulated in the Trust Deed.

Appointment of an Executor

To make the winding up of an estate more efficient, it is recommended to nominate someone who has experience in the winding up of deceased estates. The nomination of the Executor is included in the Will.

Minimising of Estate Duty and Capital Gains tax (“CGT”)

In the case of assets being awarded to a surviving spouse, roll over relief is available for Estate Duty and CGT. This can assist in minimising exposure to Estate Duty and CGT.

Unexpected loss of life

Whether it is an unexpected motor vehicle accident or a word-wide pandemic like Covid 19, the family members will know exactly who to contact to assist with the reporting of the death and registration of the estate.

It is advisable to have a person with the necessary knowledge and expertise to draw up your Will.

Watch out for a thought piece discussing these issues in depth which will be published shortly.

Jacomi Du Plessis

Supervisor: Deceased Estates, Johannesburg

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