‘Tis the season to be jolly’, or so they say! We all want to think about the festive season – the gifts, the food and the family fun, but all of this, means nothing if your family isn’t protected, should something happen to you.
There is no better time than now, to get sorted before the holiday season by taking stock of what is most important and ensuring that your family is protected. Start by getting a valid and up-to-date Will which allows you to put your wishes in writing for the distribution of your assets, appoint an executor that you can trust and nominate guardians for your minor children. Ensure that your biggest wish – that your family is given what they deserve – is secured.
“An alarming number of South Africans pass away every year without a valid Will in place, which is probably the most important document you will ever sign. Without it, your estate will be distributed in terms of the law of intestate succession. This may include beneficiaries whom you may not have wished to benefit, or may exclude persons whom you would have preferred to benefit. There is no better time than now to update or get a valid Will in place,” says Vijay Morarjee, CEO of FNB Fiduciary.
“If you have young children, there is an even bigger need for a Will as it stipulates their legal guardians, as well enabling you to set up structures to protect your children’s inheritance.”
”Make sure that you have all your i’s dotted and t’s crossed when drafting a Will. There are a couple of basic principles that if adhered to, will ensure that your Will adequately caters for your needs.” continues Morarjee.
Consider the following:
Keep it simple
It is best to have an uncomplicated Will that makes provision for unforeseen events and still complies with the legal requirements of a properly drafted document. When preparing your Will, you need to consider what will happen if one of your beneficiaries dies before you. The best way to plan for this is to name a substitute beneficiary for each of your beneficiaries or to have a general substitution clause that will make provision for this. You should preferably not instruct your executor to sell your assets at death. If you do instruct the executor accordingly, he/she is compelled to sell the assets even if a heir would like to retain the assets.
Consider your marital status
The type of marriage you have entered into needs to be considered when your Will is prepared. Spouses married in community of property share equally in the risks and benefits of a joint estate. In general terms, the estate will be regarded as one, and each spouse owns an undivided half share of the joint estate. Being married out of community of property means that your assets remain your own separate property and the same applies to your spouse. When married out of community of property with accrual, your assets remain your own, separate property for the duration of your marriage, but when the marriage terminates, both spouses will share in the wealth accumulated during the marriage. Customary marriages get the same recognition as civil marriages. In terms of the law, a customary marriage is recognised as a marriage “in community of property” unless an ante-nuptial contract was entered into before the marriage.
Additional planning is required to provide for the protection of the interests of minor beneficiaries. A minor beneficiary is a person under the age of 18 who has not been legally married or has not been declared a major. To help ensure maximum protection of your minor beneficiaries’ interests, your Will should make provision for the creation of a testamentary trust if you are planning to include a minor beneficiary in your Will. A testamentary trust enables you to stipulate that the inheritance of your children or any other minor beneficiaries should be retained by your nominated trustees in trust for their benefit until a specified age. This will ensure that their inheritance does not fall into the hands of a guardian or any other person who does not have the necessary skill to manage and preserve their assets.
Nominate a guardian for your minor children. This is the person you would like to be responsible for your children if they are orphaned before reaching the age of 18. Keep in mind that the surviving parent will normally continue to have full responsibility for the children.
Nominate an executor
It is important to nominate a skilled and qualified executor in your Will. It is the executor’s responsibility to ultimately administer the estate according to current legislation and among many other duties, has to ensure that the interests of the beneficiaries are protected. FNB Fiduciary are expert estate administrators and are the nominated executors in the Wills that are drafted by FNB experts.
Get it signed
A Will is only valid if executed (signed) correctly. A Will should be signed in full on every page in the presence of two witnesses over the age of 14. The witnesses should not be people who are included as beneficiaries in the Wills or their spouses. The witnesses should also sign in full on the last page of the Will. Your Will should also be dated to ensure that the last valid Will can easily be identified.
You should review your Will whenever there has been a change in your status or circumstances, or those of your beneficiaries’ lives such as marriage, divorce, birth of a child or changes in your financial situation. Another good time to review your Will would be after any changes in legislation which could affect your estate plan.
“We encourage people to get sorted before the holiday season, so that the interests of your loved ones are protected. Don’t delay what’s most important. Protect your family, start by getting an FNB Will at no cost,” concludes Morarjee.