Will Drafting
Protect your legacy with a valid and easy to understand will drafted by qualified and experiences professionals.
Having a valid will in place is an essential part of an effective estate plan.
We guarantee that all legal requirements are met for your will to be valid, and we will review all possible contingencies so that your will provides for your unique and changing life circumstances. This ensures the best possible outcome and protection for your loved ones when you are gone.
Legal requirements for a valid will in South Africa
1.
It must be in writing i.e. typed or handwritten
However, if a will is handwritten by a testator or testatrix (person making the will). The person who writes the will by hand must not be named as a beneficiary in the will. It is also important to note that there are currently additional requirements requested by the Masters office for lodging handwritten wills of the deceased. Therefore, having a typed out and signed professionally done will is always an excellent choice for peace of mind.
2.
It must be signed by the testator or testatrix at the end thereof
If the will is only one page long, it must be signed by the testator/rix at the end of the writing. If the will is longer than one page, every page other than the last page must be signed by the testator/rix anywhere on the page and the last page must be signed at the end of the writing.
3.
16 years or older
The testator or testatrix must be 16 years or older and mentally capable of appreciating the nature and effect of his or her act.
4.
It must be signed by two competent witnesses who are there at the time of the signature
The witnesses must both be over 14 years of age to be competent witnesses and be mentally sound at the time of witnessing.
The exceptions to the general rule that the testator must sign the will
1.
A will may be signed by the testator by the making of a mark
Examples include a cross or a thumbprint. If a will is signed by the testator by the making of a mark, the mark must be made in the presence of a commissioner of oaths who must certify on the will that he has satisfied himself as to the identity of the testator and that the will is indeed the will of the testator. The commissioner of oaths must then also sign each page of the will other than the page on which his certificate appears.
2.
It may be signed by another person (an amanuensis) on behalf of and by the direction of the testator
If a will is signed by an amanuensis on behalf of the testator, it must be signed in the presence of a commissioner of oaths who must certify on the will that he has satisfied himself as to the identity of the testator and that the will is indeed the will of the testator. The commissioner of oaths must then also sign each page of the will other than the page on which his certificate appears.
Although it is not a requirement for a will to be dated to be valid, it is important to date a will to determine whether it is the testator’s latest will. This will prevent disputes and delays if more than one valid will is found after the testator has died.
Factors influencing who your intestate heirs will be
If you are married and do not have any children, the entire amount available for distribution will go to your spouse. Your marital property regime will also impact the distribution of your estate. If you are married in community (meaning you did not enter into an antenuptial contract at the time of your marriage), then only half of your estate will be available for distribution to your intestate heirs and the other half will automatically go to your spouse. If you are unmarried, the next factor to consider will be whether you have descendants.
Whether you have children can impact the distribution of your estate greatly, depending on the value of your estate. If you are married and your estate is worth less than R250 000 (the current legislated amount at the time of writing this article), then your spouse will inherit your entire estate. If you are married and your estate is worth more than R250 000, your spouse will receive either R250 000 or a child’s share, whichever is the greater amount.
A child’s share is calculated by dividing the entire amount available for distribution by the number of heirs. If a child’s share of your estate equals less than R250 000, your spouse will receive R250 000 and the remaining amount available for distribution will be divided between your children equally. If a child’s share of your estate is more than R250 000, the amount available for distribution will be shared equally between your spouse and children. If you are unmarried and have children, the entire amount available for distribution will be divided equally amongst your children.
If you die without a spouse or children, your estate will be distributed to your parents in equal half-shares. If one or both of your parents are predeceased, the predeceased parent’s half-share will be divided equally between any of their descendants i.e., your siblings or half-siblings.
If you die without being survived by a spouse, descendants, parents, siblings, or half-siblings, then your estate will go to your most closely related blood relatives. Examples include grandparents and cousins.
If you are not survived by any blood relatives at all, and no claim is made by a legitimate intestate heir within 30 years, then your entire intestate estate will be forfeited to the Republic of South Africa, also known as the state.
If you are not survived by any blood relatives at all, and no claim is made by a legitimate intestate heir within 30 years, then your entire intestate estate will be forfeited to the Republic of South Africa, also known as the state.
When someone dies without leaving a valid will, they are said to have died ‘intestate’. Someone who dies with a valid will in place is said to have died ‘testate’. Someone who inherits from an intestate estate is known as an ‘intestate heir’. Various factors found in the Intestate Succession Act determine who the heirs of an intestate estate will be.
If you die without a will in South Africa, the Intestate Succession Act 81 of 1987 will come into operation and determine who will inherit from your estate. The factors discussed above, namely whether you are married, have children, have parents that are alive or have siblings or other blood relatives, will impact the distribution of your intestate estate.
Our Expertise
At Marsh Fidelity, our team of experienced professionals can help you to ensure that your will and your estate are in order and that your assets and loved ones are protected when you pass away.
Dying without a valid will creates uncertainty for your loved ones and will increase the complexity and length of time required to administer your estate.
