No one enjoys thinking about death, but taking care of your loved ones in the event of your passing includes making sure your last wishes are clearly documented and legally vetted. Here below we provide you with five pointers to keep in mind when drafting your Will.
- Decide who to nominate as the executor of your estate.
Before discussing the nomination of the executor, let’s talk about the duty of an executor. An executor is a person nominated by the testator (male) or testatrix (female) to assist in winding up the affairs of the deceased. This would include paying off liabilities, closing off contractual agreements, distributing the assets of the deceased and facilitating the creation of testamentary trusts for minor kids to name but a few.
When you nominate an executor for your estate, you must consider the professional background of the person and their experience related to dealing with financial services providers and the tax authorities. Upon death, the Master of the High Court must be satisfied with the above requirements before the Master gives a letter of executorship to the nominated person. The process of winding up an estate can be extremely laborious and time-consuming. It is advisable to appoint a professional executor who deals with estates on a daily basis to ensure the winding up of the estate is not delayed unnecessarily, which could have lifestyle consequences for the beneficiaries of the deceased. One also needs to understand the fee structure when appointing a professional executor and perhaps negotiate the fee upfront with the executor.
Lastly, in the interest of objectivity and managing conflicts of interest, it is advisable not to appoint someone as an executor who is also meant to inherit from the deceased estate.
- The importance of choosing independent witnesses to witness your Will.
The characteristics of an independent witness are listed below:
- The witness must be 14 years or older;
- Is mentally capable of providing testimony in court at the time of signing;
- Is not specified in the Will as Executor, Trustee, Heir, Legatee or Beneficiary
- Is not the spouse of anyone who has been specified in the Will
It is important to emphasise that if any of the above requirements are not met, the witness will be disqualified.
- Who will become the guardian of your children upon death?
When you have minor children, one of the most important decisions to make in your Will is who will become their guardian/s upon your death. In our experience, people find it difficult who to choose as guardians for their minor children and in some instances parents struggle to come to a consensus should both pass away. When choosing a guardian in your Will you have to consider factors like moral beliefs, family values, trustworthiness, financial situation and the guardians age. In the event of an impasse, perhaps consult a family advocate to assist in determining the best interests of the child before finalising your Will. After you decide on the guardian, you need to speak to them about the nomination to ensure that they are willing to take on the responsibility.
- Understand the requirements for a Will to be valid as set out in the Wills Act 7 of 1953.
For a Will to be valid, it has to meet the following requirements:
- A person must be over the of 16 years.
- The Will must be in writing.
- The Will must be signed and dated by the Testator/Testatrix, on each page and at the end.
- The signing of the Will should be witnessed by two competent, independent witnesses, who sign on each page and at the end of the Will.
- Keep your Will safe after it has been drafted and signed.
Your Will is one of the most important documents you will ever sign. It is therefore important to make sure it is kept in a safe place where your executor can find it when needed. If your Will is lost or damaged after your death, then your wishes might not be followed and that will have major implications for your loved ones. We always recommend signing at least two copies of the same Will so that one copy can be kept in safe custody and the other copy at home.
Having a valid Will in place removes the burden on your loved ones of having to decide what happens as a result of your passing. It is one of the best gifts you can leave behind, making the grieving process easier on those you care about most.