Wills & Estates

There are a few essential requirements you need to meet:

1. Age and capacity: you must be of legal age, typically 18 years or older, to create a will. Additionally, you need to be of sound mind and capable of understanding the consequences of your decisions at the time of creating the will.
2. In writing: your will must be in writing, either handwritten or typed. It’s important to have a physical document that clearly expresses your wishes.
3. Signature: you must sign your will at the end of the document. This shows that you have approved and intended the contents of the will. It’s crucial to sign in the presence of two witnesses who are not beneficiaries or their spouses.
4. Witness signatures: the witnesses need to sign the will as well, confirming that they witnessed your signature and that you appeared to be of sound mind when signing. Their role is to provide independent verification of the validity of the will.

Meeting these requirements helps ensure that your will is legally valid and enforceable. However, keep in mind that the specific legal requirements may vary depending on the jurisdiction. It’s always advisable to consult with a knowledgeable attorney to ensure that your will meets all the necessary criteria in your particular area.

To get nominated as an executor of an estate, typically, the following steps are involved:

1. Will designation: first, the person creating the will, known as the testator, must explicitly nominate you as an executor in their will. They can do this by clearly stating your name and designation as the executor.
2. Acceptance: after the testator’s passing, you will need to accept the nomination as executor. This can be done by formally expressing your willingness to take on the role and responsibilities associated with it. It’s important to consider whether you have the time, capability, and willingness to fulfil the duties of an executor before accepting the nomination.
3. Legal process: once you have accepted the nomination, the will needs to go through the probate process. This involves submitting the will to the appropriate court for validation and obtaining legal authority to act as the executor. The court will review the will, confirm its validity, and issue the necessary legal documents granting you the authority to administer the estate.
4. Estate administration: as the nominated and appointed executor, you will be responsible for handling the administrative tasks of the estate. This includes gathering assets, paying debts and taxes, protecting the estate’s interests, and distributing the remaining assets to the beneficiaries as specified in the will.

It’s important to note that the process may vary depending on local laws and regulations. Consulting with an attorney or legal professional who specializes in estate administration can provide you with specific guidance on the nomination and appointment process in your jurisdiction.

Yes, in South Africa, a handwritten will, can be legally recognised. This means that you can write your will in your own handwriting instead of typing or printing it. However, there are a few important conditions for a handwritten will to be valid:

1. Entirely handwritten: the entire will, including all its provisions, must be written by hand. You cannot use pre-printed forms or templates for this type of will.
2. Signature and date: you must sign the will at the end and include the date when you wrote it. Your signature confirms that you approve the contents of the will.

While a handwritten will can be legally recognised, it’s important to note that it may raise challenges if it is difficult to read or if there is any ambiguity in your intentions. Therefore, it’s advisable to consult with an attorney who specialises in estate planning to ensure your handwritten will meets all legal requirements and accurately reflects your wishes.

Relatives who are not listed in a will may not automatically inherit from the estate. In most cases, the distribution of assets will follow the instructions provided in the will. If a relative is not mentioned as a beneficiary or heir in the will, they may not have a legal right to inherit.

However, it’s important to note that laws regarding inheritance can vary depending on the jurisdiction and applicable laws. In some cases, there may be provisions in the law that entitle certain relatives to a share of the estate, even if they are not explicitly named in the will. These provisions are generally based on familial relationships and are often referred to as “intestate succession” laws.

If you have concerns about relatives who are not listed in a will or if you believe that they may have a rightful claim to the estate, it’s advisable to consult with an attorney who specializes in estate planning and probate law. They can provide guidance based on the specific laws in your jurisdiction and help ensure that the estate is distributed in accordance with the applicable legal requirements.

An independent witness refers to an individual who has no personal interest in the contents of your will. When it comes to signing your will, having independent witnesses is important to ensure its validity and credibility. Here’s what it means to have an independent witness:

1. Unbiased and neutral: an independent witness is someone who does not stand to benefit from your will or have any conflicts of interest. They should be impartial and not be named as a beneficiary in your will or be closely related to any beneficiaries.
2. Verification and credibility: the role of an independent witness is to observe you signing your will and confirm that it is indeed your signature. By having independent witnesses present, it adds credibility and helps prevent potential challenges regarding the authenticity of your will.
3. Legal requirements: the number of witnesses required may vary depending on your jurisdiction. In many places, including south africa, having two independent witnesses is typically required. These witnesses should be of legal age and mentally capable of understanding the significance of their role as witnesses.

By selecting independent witnesses, you ensure that your will is more likely to be accepted as legally valid and accurately representing your wishes. Remember, it’s important to choose witnesses who are trustworthy, willing to fulfil their role, and who understand the importance of their impartiality in the process.

A bequest refers to a gift or inheritance that is specifically designated in a will. It is a provision in the will where the testator (the person creating the will) specifies the distribution of certain assets or property to a particular individual or organisation.

In simple terms, a bequest is a way for the testator to express their wishes regarding who should receive certain items or assets after their death. It can involve various types of property, such as money, real estate, personal belongings, or even specific rights or privileges.

Bequests can be made to family members, friends, charitable organisations, or any other person or entity that the testator wishes to benefit from their estate. The specific details of the bequest, including the identity of the recipient and the nature of the gift, should be clearly stated in the will.

By including bequests in their will, individuals can ensure that their assets are distributed according to their intentions and that their loved ones or chosen beneficiaries receive specific items or inheritances as outlined in the document.

In South Africa, there is no legal limit on how much you can bequeath in a will. You are free to leave your assets to anyone you choose. However, it is important to keep in mind that your will should not violate any laws or regulations. Additionally, if you have debt or outstanding obligations at the time of your death, those may need to be settled before your assets can be distributed to your beneficiaries.

You may write a will at the age of 16 or older.

Yes, minor children can be beneficiaries of life cover. Life cover, also known as life insurance, is a financial product that provides a payout in the event of the insured person’s death. The policyholder has the flexibility to designate beneficiaries who will receive the insurance proceeds.

In the case of minor children, it is common for parents or legal guardians to designate them as beneficiaries of life cover. This ensures that, in the unfortunate event of the policyholder’s death, the insurance proceeds are directed towards the financial well-being and support of the children.

However, since minors cannot directly manage or access significant sums of money, it is advisable to appoint a trustee or a guardian to oversee the funds on behalf of the minor beneficiaries. The trustee or guardian will act in the best interests of the children, ensuring that the funds are used for their care, education, and other necessary expenses until they reach a suitable age or meet specific conditions specified in the policy.

It’s important to consult with an insurance advisor or financial planner when designating minor children as beneficiaries of life cover. They can guide you through the process, help establish a trust or guardianship arrangement, and ensure that the insurance policy aligns with your specific intentions and the well-being of your children.

When parents pass away without a will, their estate is distributed according to the laws of intestate succession. Here’s what can happen in such situations:

1. Intestate succession: intestate succession is a legal process that determines how the assets of someone who dies without a will are distributed. In the absence of a will, the south african intestate succession act comes into play.
2. Standard distribution: the act provides a standard distribution plan that typically prioritizes the surviving spouse and children. The spouse may inherit a certain portion, while the remaining assets are divided among the children.
3. Absence of spouse and children: if there is no surviving spouse or children, the act outlines specific rules for the distribution of assets among other relatives, such as parents, siblings, and more distant relatives.
4. Court appointed executor: without a will, there is no named executor to administer the estate. In such cases, the master of the high court appoints an executor to handle the estate administration process.

It’s important to note that intestate succession may not align with the deceased parents’ specific wishes or the family’s unique circumstances. Creating a will allows parents to have control over how their assets are distributed and to make provisions for guardianship of their minor children.

To avoid potential complications and ensure that your assets are distributed according to your preferences, it’s advisable for parents to consult with an attorney specializing in estate planning and draft a comprehensive will.

The main difference between a will and a trust lies in how they function and when they take effect.

A will is a legal document that outlines your wishes regarding the distribution of your assets after your death. It becomes effective upon your passing and goes through a legal process called probate, where your assets are managed and distributed according to your instructions. A will allows you to appoint an executor to oversee the distribution process and name guardians for minor children, if applicable.

On the other hand, a trust is a legal entity that holds and manages assets on behalf of beneficiaries. It can be created during your lifetime or through your will and can take effect immediately or upon your death, depending on the type of trust. With a trust, you transfer your assets into the trust, and they are managed by a trustee for the benefit of the designated beneficiaries. A trust can provide more flexibility and control over how your assets are managed and distributed, as it can bypass the probate process and may offer certain tax advantages.

In summary, a will is a document that becomes effective upon your death and outlines the distribution of your assets, while a trust is a legal entity that can be created during your lifetime or through your will, providing ongoing management and control over your assets for the benefit of designated beneficiaries. The choice between a will and a trust depends on your specific needs, goals, and the complexity of your estate. It’s recommended to consult with an attorney or estate planning professional to determine the best approach for your circumstances.

While designating beneficiaries is important, having a will is still highly recommended, even if you have already specified beneficiaries. Here’s why:

1. Comprehensive estate planning: a will goes beyond simply naming beneficiaries. It allows you to provide detailed instructions about how you want your assets to be distributed, including specific gifts, conditions, or special requests that may not be covered by beneficiary designations alone.
2. Contingency planning: a will allows you to plan for unforeseen circumstances. You can name alternate beneficiaries in case your primary beneficiaries pass away before you do, ensuring that your assets are still distributed according to your wishes.
3. Guardianship for minors: if you have minor children, a will is crucial for naming a guardian who will care for them if you and the other parent are unable to do so. This provision ensures that your children are in the hands of someone you trust.
4. Handling unforeseen assets: your will covers not only designated beneficiaries but also any assets that may not have specific beneficiaries assigned. It helps avoid any confusion or disputes by clearly stating how these assets should be distributed.
5. Estate administration: having a will simplifies the estate administration process. It provides guidance to the executor you appoint, streamlining the distribution of assets and minimizing potential conflicts among family members.

By having a will in addition to designating beneficiaries, you have greater control over your estate and can address various aspects of your legacy. It’s advisable to consult with an attorney specializing in estate planning to ensure that your will is properly drafted and legally valid.

Accidental (implied or tacit) revocation concerning wills refers to a situation where a person unintentionally revokes or cancels their existing will through certain actions or circumstances. This type of revocation occurs when the testator (the person who made the will) takes actions that indicate their intention to revoke the will, even if it was not their explicit intention.

Examples of accidental revocation can include destroying or altering the original will, creating a new will that does not explicitly revoke the previous one, or making significant life changes that imply a change in their testamentary wishes. These actions can create ambiguity and confusion about the validity and intent of the testator’s will.

It’s important to note that accidental revocation can have legal consequences, as the revoked will may no longer be considered valid or enforceable. To avoid accidental revocation, it is crucial to handle and store the original will carefully, seek legal advice when making changes or creating new wills, and communicate any changes in testamentary wishes clearly.

If there is uncertainty about the revocation of a will due to accidental actions or circumstances, it is recommended to consult with an attorney who specializes in estate planning and probate law. They can assess the situation, review any available evidence, and provide guidance on the legal implications and potential solutions to ensure the testator’s intentions are properly addressed.

A last will and testament does not have an expiration date per se. Once a will is properly executed and remains unchanged, it can remain valid indefinitely. However, it’s important to keep the following points in mind:

1. Regular review: life circumstances change, and it’s advisable to review your will periodically, especially after significant events like marriage, divorce, or the birth of a child. While the will itself doesn’t expire, updating it ensures that it accurately reflects your current wishes.
2. Revoking or updating: if you want to make changes to your will, it’s best to create a new will or add a codicil (an amendment) to your existing will. This ensures that your revised intentions are properly recorded and reduces the potential for confusion or disputes.
3. Outdated provisions: although the will as a whole does not expire, specific provisions may become outdated or no longer applicable. It’s important to ensure that the instructions and distributions mentioned in your will are still relevant to your current circumstances.

To ensure that your will remains up to date and reflects your wishes accurately, it’s advisable to consult with a legal professional specializing in estate planning. They can guide you on when and how to update or revise your will as needed.

No, the executor of a will does not have the authority to change the contents of the will. The role of the executor is to carry out the instructions and wishes of the deceased person as outlined in the will.

It’s important to note that the executor has a legal and fiduciary duty to act in the best interests of the estate and the beneficiaries. Any attempt to modify the will or act against its instructions would be a breach of their responsibilities and may have legal consequences.

If you have concerns about the actions of an executor or suspect any impropriety, it’s advisable to consult with a legal professional who can provide guidance and take appropriate measures to protect your interests.

The executor of a will has important responsibilities that include:

1. Administering the estate of the deceased person.
2. Their main functions include handling the legal and financial aspects of the estate, ensuring the deceased’s wishes are carried out.
3. Some specific tasks of an executor include gathering assets, paying debts and taxes, and distributing assets to beneficiaries.
4. They initiate the probate process if required and ensure the will is executed according to legal requirements.
5. Executors have a duty to act in the best interests of the estate and the beneficiaries, following the instructions outlined in the will.
6. If you are named as an executor, it’s advisable to seek legal guidance to understand your duties and obligations in fulfilling your role.

No, you do not necessarily need a lawyer to draft a will. While it is recommended to seek legal advice to ensure your will is legally valid and covers all necessary aspects, you have the option to draft a will on your own. However, it’s important to note that a lawyer can provide valuable expertise and guidance in estate planning, helping you navigate complex legal requirements and ensure that your will accurately reflects your wishes.

Yes, a family member can witness a will, but it is generally not recommended. Many jurisdictions have laws that prohibit family members from acting as witnesses to ensure impartiality and to prevent any potential conflicts of interest. It is advisable to choose independent witnesses who are not beneficiaries or closely related to you to ensure the validity and credibility of the will.

A will, also known as a last will and testament, is a legal document that outlines a person’s wishes regarding the distribution of their assets and the handling of their affairs after their death. It serves as a crucial tool for individuals to express their intentions and provide instructions on how their estate should be managed and distributed.

Here are some key points to understand about wills:

1. Estate distribution: a will allows you to specify how you want your property, possessions, and financial assets to be distributed among your chosen beneficiaries upon your death. This can include assets such as real estate, investments, bank accounts, personal belongings, and more.
2. Executor appointment: in a will, you can name an executor—the person responsible for carrying out the instructions outlined in the will. The executor’s role involves tasks such as collecting and managing assets, paying debts and taxes, and distributing the estate as per your wishes.
3. Guardianship choice: if you have minor children, a will allows you to designate a guardian who will be responsible for their care in the event of your death. This ensures that your children are placed under the care of someone you trust.
4. Specific bequests and instructions: a will provides an opportunity to make specific bequests or gifts to individuals or organisations. You can also include specific instructions for the handling of certain assets, such as donations to charities, the establishment of trusts, or the management of business interests.
5. Legal requirements: wills must generally adhere to specific legal requirements to be considered valid. These requirements can vary depending on the jurisdiction but often involve factors such as the testator’s mental capacity, the presence of witnesses, and the signing and dating of the document.
6. Updating a will: it’s important to review and update your will periodically, especially when significant life events occur, such as marriage, divorce, the birth of children, or changes in your financial situation. Updating your will helps ensure that it accurately reflects your current wishes and circumstances.

Creating a will is a proactive step that allows you to have control over the distribution of your assets and the protection of your loved ones.

Yes, executors are legally obligated to follow the instructions and provisions outlined in a valid will. The role of an executor is to carry out the wishes of the deceased person as expressed in the will. They have a fiduciary duty to act in the best interests of the estate and the beneficiaries. This includes managing the estate, paying debts and taxes, protecting assets, and distributing the estate’s assets according to the instructions specified in the will. Deviating from the terms of the will without proper legal justification would be a breach of the executor’s duties and could lead to legal consequences.

1. Executor: choose someone you trust to be responsible for carrying out your wishes and handling the distribution of your assets. This person will be responsible for managing your estate.
2. Beneficiaries: these are the individuals or organizations you want to inherit your assets or receive specific gifts from your estate. You can specify what each beneficiary should receive, whether it’s a certain amount of money, a property, or other possessions.
3. Guardianship: if you have minor children, you can use your will to name a guardian who will take care of them if something happens to you and the other parent. It’s crucial to discuss this with the person you have in mind beforehand.
4. Asset distribution: clearly state how you want your assets, such as property, investments, and personal belongings, to be distributed among your beneficiaries. You can divide them equally or specify different shares for each beneficiary.
5. Residue clause: include a clause that covers what should happen to any remaining assets or funds not specifically mentioned in your will. This ensures that everything is accounted for and prevents any confusion or unintended consequences.
6. Executable: make sure that it is possible to execute on your wishes. Please ensure that there will be cash available after you die to wrap up your life.
7. Signatures: it must be properly signed by you and 2 independent witnesses. These witnesses must not gain any benefit from the will.

Remember, it’s essential to consult with a legal professional who specializes in estate planning to ensure your will reflects your wishes and is legally binding.

Yes, beneficiaries of a will have rights and entitlements. Once the will is valid and the estate administration process begins, beneficiaries have the following rights:

1. Right to be informed: beneficiaries have the right to be notified of their status as beneficiaries and to receive information about the progress of the estate administration. They should be informed of any significant developments, such as the initiation of probate, asset valuations, and distribution plans.
2. Right to receive assets: beneficiaries have the right to receive their designated share of the estate as outlined in the will. This includes any specific gifts, bequests, or inheritances that have been allocated to them.
3. Right to an accurate accounting: beneficiaries have the right to an accurate and transparent accounting of the estate’s assets, liabilities, income, and expenses. They can request an overview of the financial transactions related to the estate administration process.
4. Right to challenge: if beneficiaries believe that the will is invalid, or if they have concerns about the actions of the executor, they have the right to challenge the will or seek legal remedies to protect their interests.
5. Right to fair treatment: beneficiaries have the right to be treated fairly and without discrimination in the administration of the estate. The executor should not show favouritism or act in a manner that unjustly disadvantages any beneficiary.

It’s important for beneficiaries to stay informed, ask questions, and seek legal advice if they feel their rights are being violated or if they have concerns about the estate administration process.

Once you’ve included all the necessary details in your will, it’s time to wrap things up and make it official. Here are the steps to finalise your will:

1. Review and revise: before finalising your will, take some time to review it and ensure that everything is accurate and reflects your wishes. If you need to make any changes or additions, you can do so by creating a new will or adding a codicil (an amendment to your existing will).
2. Signatures: your will needs to be signed to make it legally binding. Sign your will at the end of the document and make sure to date it. It’s also important to have two witnesses present while you sign. The witnesses should be independent individuals who are not beneficiaries named in your will or their spouses.
3. Witness signatures: after you’ve signed your will, the witnesses should also sign it in your presence. They need to provide their full names, addresses, and the date of signing. Their role is to confirm that you signed the will voluntarily and that you appeared to be of sound mind at the time.
4. Safekeeping: once your will is signed and witnessed, it’s crucial to store it in a safe and accessible place. Inform your executor or a trusted family member about the location of your will, so it can be easily found when needed. Consider keeping a copy with your attorney or in a secure digital format.
5. Regular updates: keep in mind that life circumstances and your wishes may change over time. It’s a good practice to review your will periodically, especially after significant events like marriage, divorce, or the birth of a child. If you need to make changes, consult with a legal professional to ensure the updates are properly recorded.

Remember, the process of finalizing a will can vary depending on the laws of your jurisdiction. It’s always advisable to seek guidance from a qualified attorney to ensure that your will meets all legal requirements and reflects your intentions.

Yes, it is possible to have joint executors of a will. Joint executors are individuals appointed to act together in administering the estate and carrying out the instructions outlined in the will. This arrangement can provide added support, shared responsibilities, and a checks-and-balances system in the administration process.

When there are joint executors, they must work together and make decisions collectively. This means that major decisions, such as selling property or distributing assets, require the agreement and consensus of all joint executors. Communication and cooperation between the joint executors are essential to ensure the smooth administration of the estate.

It’s important to carefully consider the selection of joint executors and ensure they have a good working relationship and can effectively collaborate. It’s also advisable to specify in the will how decisions will be made in case of a disagreement or if one of the joint executors becomes unable or unwilling to fulfil their duties.

Having joint executors can provide added flexibility and efficiency in estate administration, but it’s important to seek legal advice and consider the specific circumstances and dynamics of the situation before making a decision.