Perhaps one of the most common misconceptions when it comes to drafting a Will is that by doing so, one is essentially proclaiming their untimely demise into the universe. In fact, the opposite couldn’t ring truer – having a Will means that in the event of your death, you not only can control what happens to your possessions from ‘beyond the grave’ but you also lessen the likelihood of family debacles surrounding your estate!

A serious implication of not having a Will, and one that is of increasing concern, is that people fail to realise what it means to die intestate i.e. without a valid Will in place. The realisation of “oh, how I wish they actually had a Will” unfortunately comes too late and, ironically, to the family members who are still living. If you still need a little more motivation; here are a few to get you thinking:

A long walk to (financial) freedom!

Not only are intestate estates more complex to wind up, but the period of time it takes to do so is usually far longer than an estate where there was a valid Will in place. The intestate heirs will face a number of administrative decision-making obstacles which, historically, would lead to family disagreements resulting in protracted legal battles and dependants who are left without access to funds.

You have zero control!

Assets in an intestate estate are distributed in accordance with legislative provisions found in the Intestate Succession Act; irrespective of what your personal preferences would have been or what any of your family members say ‘you would have wanted’. A typical example is where you owned a home and your children could not reach agreement as to what would happen to it; that appreciating asset would be sold and the proceeds divided amongst the heirs. Sure, they would have acquired a sum of money, but the consequences of losing the sentiment attached to a family home could cause more drama than one could fathom.

Your children’s money could be ‘tied-up’ for a while!

Where a Will exists (and is well drafted), there would more than likely be provision for financial benefits toward your minor children and how those are to be dealt with until they reach the age of majority (or otherwise specified by you). In an intestate estate, the former does not apply as all inheritances due to your kids will be paid into a State institution called the Guardian’s Fund whose function is to manage the funds of the minor children. Though this may not sound inherently problematic, one must consider that the Guardian’s Fund deals with thousands of matters from all over the province and though their work is certainly commendable, it has great potential to become an administrative nightmare, especially to those unfamiliar with the processes. Any monies your minor heirs will be entitled to upon attaining majority will require them to jump through a few administrative hoops before claiming what is due to them.

‘What’s mine is mine, and what’s yours…is also mine!”

Say your daughter is married and she did not sign an antenuptial contract (i.e. she was married in community of property; legally speaking, half of what is hers also belongs to her spouse – whether they are aware of it at the time or not. Your dream is that she inherits the family home. Problem is that without a valid Will in place specifying this bequest, 50% of that asset would belong to her spouse (who may or may not have been your favourite person in the world). Should they divorce, the proceeds from the sale of the house will be split between them or if he turns out to be a big spender, creditors can proceed against the house due to it being his partial asset.

If the above scenarios have not managed to convince you of the need to have a valid Will drafted to secure your assets as well as the future of your heirs, then perhaps you would be swayed by the fact that it’s currently national Wills Week and Randles will be providing a free service of drafting you a simple Will.

For more information on this or any other legal related queries please contact us at info@randles.co.za or 033 392 8000.

For a free will, please download the questionnaire below and email it to esme@randles.co.za

Basic Questionnaire – Free Wills Week

BY: Shian Heynes (Attorney) – Randles Attorneys