Tyler du Plessis, legal adviser at Allan Gray

A will is one of the most important documents that you will execute. It furnishes control, clarity and peace of mind over how your assets will be dealt with when you are no longer around. And yet, according to the Financial Sector Conduct Authority, more than 70% of working South Africans do not have a will.

“Although the law has provided guidelines for the distribution of your assets after your death, you have the power to have the final say on many aspects of this process by drawing up a will,” says Tyler du Plessis, legal adviser at Allan Gray.

Why a valid will matters

Du Plessis says that a will is a legal document that records how your assets should be distributed upon your death and may include specific bequests, the nomination of heirs, the appointment of an executor to manage your estate, the nomination of a legal guardian to care for your minor children and directions regarding your funeral preferences.

Executing a valid will provides essential legal and personal safeguards, including:

1. Protection of loved ones: Your assets will be distributed according to your wishes and safeguard the financial wellbeing of those you care about.
2. Minimisation of disputes: Clear and legally binding instructions can prevent conflicts among heirs.
3. Streamlined estate administration: Beneficiaries experience simpler legal processes and minimised delays.
4. Appointment of a trusted executor: You can designate a reliable person to manage and distribute your estate according to your intentions.
5. Provision for minor children: You can nominate a legal guardian or make provision for a trust to be created to manage your minor children’s inheritance until they reach the age of majority.

What happens if you die without a will?

“Passing away without a valid will can place significant financial and emotional strain on your loved ones as they navigate the complexities of distributing your estate during an already-challenging time,” says du Plessis.

She says that if you do not have a valid will in place when you die, your estate will be distributed according to the Intestate Succession Act. “This process has significant legal and emotional implications.”

Some of these include:

1.    Delays and increased costs: Intestate estates typically take longer to administer and may incur higher legal fees, ultimately diminishing the value of your estate and reducing the inheritance available to heirs.

2.    No control over heirs: Assets are distributed according to a set formula. You lose the ability to choose who inherits your assets, and sentimental or personal assets cannot be allocated to specific heirs.

3.    No control over executor appointment: The executor is nominated by heirs in consultation with the Master of the High Court. This may not have been the person that you intended to administer your estate.

4.    Uncertain guardianship of minor children: An application will have to be made to the court for an order granting guardianship. This takes time, entails legal costs and may result in the appointment of a person other than your preferred choice

Assets not governed by your will

“Some of your assets either fall outside of your estate or will be distributed according to your specific beneficiary nominations. Retirement fund investments, for example, are excluded from your estate,” says du Plessis.

She explains that the trustees of the retirement funds are mandated to distribute these death benefits according to section 37C of the Pension Funds Act, prioritising financial dependants. The intention of the Act is to ensure that no one who was financially dependent on you is left without support.

“The trustees’ decision overrides your will and nominations; however, the information you supply is critical to support the trustees in their investigation,” says du Plessis. “It is therefore crucial that you keep your beneficiary nominations on retirement fund investments or long-term insurance policies up to date.”

Getting your affairs in order

If you have not yet drafted a will, National Wills Week is a great time to discuss your intentions with a legal professional. Visit the Law Society's website to find a participating attorney in your area.

“To safeguard your wishes, ensure that you use the services of a qualified professional to execute, review and amend your will regularly to align with your intentions. You should also let a trusted individual know where you store your legal documents, including your last will and testament,” concludes du Plessis.