Do you know what happens if your Will is not valid, or what your rights are regarding executors or updates?
1. How is my property dealt with if I die without having a valid Will?
If a person dies without a valid Last Will and Testament, their estate, which includes their movable and immovable property, devolves according to the Intestate Succession Act 81 of 1987, of South Africa. Therefore, the intended bequests of an individual, if not recorded in a Last Will and Testament, may not reach his or her intended heirs.
2. Is it important to update my Last Will and Testament?
Yes, it is crucial that every individual revisits their Last Will and Testament from time-to-time to ensure that it still accurately reflects their intentions. Life events such as divorce, death of a spouse or children, or the birth of children or grandchildren all have an impact on your Estate and should be taken into account.
Other important considerations for updates:
- Has provision been made in your Will for how your inheritance will devolve to minors inheriting from your estate? If this is not provided for, the Master could direct that the funds are held by the Government Guardian’s Fund until majority.
- If your estate has changed in terms of assets acquired or disposed of, you may need to reflect those changes in your Will if such assets have been specifically mentioned before.
- If you have dual-citizenship it would be wise to take that into consideration and perhaps draw up concurrent Wills.
3. How can I update my Will?
A Last Will and Testament can be updated by means of a Codicil whereby specific clauses in an existing Will are addressed and changed, or by means of the redrafting of the Will if required or if the Testator so wishes.
You may approach the person who drafted your existing Will to update it or you may approach another Attorney. You do not have to utilise the services of the same person who drafted your existing Will in order to implement the changes, if you are not comfortable with doing so.
4. What are my rights concerning the drafting of my Last Will and Testament?
It is your prerogative to:
- Choose who drafts your Will;
- To make changes to and update your Will as needed, to reflect your intentions and wishes. However, keep in mind that these changes and updates must be done in compliance with strict statutory requirements in order to be accepted by the Master when your Estate is being wound up, therefore it would be advisable to consult an expert. See the Wills Act 7 of 1953;
- To nominate your own Executor and Alternate Executor, and if included, to nominate your own Trustees;
- To give voice to your own intentions regarding your succession or the devolving of your estate;
- To have your Will drafted free from influence, fear or duress.
The drafting of a professional Will is a vital part of Estate Planning and an invaluable investment in giving voice to your intentions regarding the administration and distribution of your Estate.
Disclaimer: the information contained in this article is educational and not intended as legal advice. You should contact an Attorney for advice and assistance pertaining to your Will and your specific circumstances.