At LegalWills.co.za we say that making a South African Will can take 20 minutes. While you need to think carefully about the big decisions, a simple plan for your estate distribution in straightforward situations can speed up the process.
It is crucial for South Africans to make a will to ensure their assets are distributed according to their wishes.
In this article I’ll show you how I made my South African Will, my Gauteng Will in 5 minutes. Getting your affairs in order is peace of mind and here’s how you can do it.
What is a Last Will and Why is it Important?
A Last Will and Testament, commonly known as a Will, is a crucial legal document that outlines how your assets will be distributed after your death. This document ensures that your wishes are respected and your loved ones are protected. Without a Will, your estate will be subject to the laws of intestate succession, which may not align with your personal desires.
Having a Will is essential for several reasons:
- It allows you to appoint an executor who will manage your estate and ensure your wishes are carried out.
- You can name beneficiaries for your assets, including family members, friends, and charitable organizations.
- It provides for the care and well-being of minor children by appointing a guardian.
- It helps minimize conflicts and disputes among family members.
- It reduces the risk of your estate being distributed according to the laws of intestate succession, which might not reflect your true intentions.
Personal Details
First I entered my personal details: full name, city and province. Choosing Gauteng as the jurisdiction for my Will means the laws of that province will apply. This is important as the province’s laws will govern the estate administration.
Legal Capacity and of Sound Mind
As a South African citizen over 16 and of sound mind I meet the legal capacity requirement to make a Will. This ensures the Will is legally valid and protects it from legal challenges to its validity.
Family Details, Minor Children, and Guardian
Next I entered my family details, my marital status and children’s information. For my example I have a daughter under 18. According to South African law minors can’t inherit directly so I created a Minor Trust to manage her inheritance. This legal mechanism protects their financial interests until they come of age. Without a testamentary trust, a child’s inheritance may be held in the guardian’s fund until they come of age.
To secure their future I appointed a guardian for my children, I chose my sister to do so. I also nominated an alternate guardian for any unforeseen circumstances where my first choice is not available, which is recommended in South African law to ensure the children’s welfare is prioritised.
Executor
An Executor is mandatory, they will carry out the instructions in the Will. I appointed an Executor, stated their relationship to me and provided their address, another important legal requirement. Having an alternate Executor ensures someone is always available to manage the estate responsibly.
Understanding the Probate Process
The probate process is the legal procedure of verifying the validity of a Will and ensuring that the deceased person’s assets are distributed according to their wishes. Here are the typical steps involved in the probate process:
- Filing the Will with the probate court.
- Appointing an executor to manage the estate.
- Notifying beneficiaries and creditors.
- Gathering and valuing the deceased person’s assets.
- Paying debts and taxes.
- Distributing assets to beneficiaries.
While the probate process can be complex and time-consuming, it is essential to ensure that the deceased person’s wishes are respected and their estate is distributed fairly.
Estate and Bequests
I focused on estate distribution and started with bequests. The platform prompted me to include a R20,000 donation to United Way South Africa.
It is crucial to include personal items in the will to ensure they are distributed according to the individual’s wishes.
If everything goes according to plan my entire estate would go to my spouse. But contingency planning, for instance what would happen if we both died in an accident, led to equal distribution for our two children as they are minors and need trust management.
Do I Need an Estate Planning Lawyer?
While it is possible to create a Will without the help of an estate planning lawyer, seeking professional advice is highly recommended to ensure that your Will is valid and meets your needs. An estate planning lawyer can help you:
- Create a comprehensive estate plan that includes a Will, living will, and other essential legal documents.
- Ensure that your Will meets the legal requirements of your state or country.
- Appoint an executor and guardians for minor children.
- Minimize the risk of disputes and conflicts among family members.
- Ensure that your estate is distributed according to your wishes.
Alternate Distribution and Revocation Clauses
I also planned for alternate beneficiaries, what if either child predeceases me. I appointed my cousin as an heir in that instance and if both children die I appointed the same cousin. This involves a revocation clause that says all previous Wills are null and void so there’s no confusion or disputes.
Trust and Debt Forgiveness
For minors direct inheritance requires a structured trust that dictates when the funds are released at specific life stages, for instance 30 years of age with interim distributions. This takes into account their developmental maturity and financial management readiness.
Using self-proving affidavits can expedite the estate distribution process, although they are optional and may not be recognized in every state.
I chose not to forgive specific debts in the example, but the platform allows for that.
Essential Legal Documents to Consider
In addition to a Will, there are several other essential legal documents that you should consider as part of your estate plan. These include:
- Living Will: A document that outlines your wishes for medical treatment in the event that you become incapacitated.
- Power of Attorney: A document that appoints someone to manage your financial affairs if you become incapacitated.
- Trust: A legal entity that holds assets for the benefit of beneficiaries.
- Beneficiary Designations: Documents that name beneficiaries for life insurance policies, retirement accounts, and other assets.
Signing and Witnessing the Will with Two Witnesses
I completed my draft and the final step is to sign the Will at the end, witnessed by two competent persons. This finalises the document and makes it legally binding according to South African law and protects against future challenges.
Individuals can draft their own will without needing an attorney’s assistance.
Final Steps, Probate Process, and Document Management
After I completed the draft the account setup was seamless, the service cost was R650 including VAT and I would have long term access to my Will to edit or revise. Other services like Living Will, Power of Attorney and Expat Will are part of LegalWills.co.za’s estate planning offering.
From the member area my South African Last Will and Testament was downloadable as an 8 page PDF, which included: charitable donations, children’s inheritance, trust foundations, Executor powers and child guardianship.
Once completed and signed according to the law you can rest easy, your Will is legal – done in minutes.
I hope you have seen how to create a legal South African Will. Do it today and your wishes will be fulfilled and your loved ones protected.
Storing and Updating Your Will
Once you have created your Will, it is essential to store it in a safe and secure location, such as a fireproof safe or a secure online vault. Ensure that your executor and beneficiaries know where to find your Will and how to access it.
It is also important to review and update your Will regularly to ensure that it remains valid and meets your changing needs. You should review your Will:
- Every three to five years.
- When you experience a significant life event, such as a marriage, divorce, or the birth of a child.
- When you acquire new assets or change your beneficiaries.
Conclusion
Creating a Last Will and Testament is an essential part of estate planning. It ensures that your wishes are respected, your loved ones are protected, and your estate is distributed according to your desires. By understanding the importance of a Will, the probate process, and the role of an estate planning lawyer, you can create a comprehensive estate plan that meets your needs and provides peace of mind for you and your loved ones.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets and has contributed to articles in most leading publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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- A Guide to Writing a Will for Young Adults in South Africa - 23 September 2022
