Introduction

If you die without a valid will (referred to as dying “intestate”) it has major implications for both yourself as well as for the dependents that you leave behind.

A will can be defined as “a legal document, which contains wishes of the person making it (aged 16 years or older) regarding the distribution of the assets in their estate on their death”.

However, many people don’t even have a will and they don’t realise how many problems can arise from dying intestate.

Here follows 10 reasons why you should have a valid will in place:           

1. It is the only way that you can ensure that your estate will be divided according to your wishes after your death.
2. If you don’t have a valid will in place when you die the estate will simply be inherited according to intestate rules (which can be both impractical and inflexible). Assets cannot be distributed until all the rules regarding intestate succession have been adhered to, which often leads to delays and unnecessary costs.
3. With intestate succession the wrong people may inherit and it may not be possible to effect your wishes while you were still alive.
4. If there is no will and the value of the estate exceeds R125 000, the Master of the High Court will convene a meeting of family members in order to appoint an executor. This causes a delay and is a costly and time-consuming process. The estate is frozen while it is being wound up, and dependant heirs may not have access to funds during this time. This might place an extremely large burden on dependents after your death.
5. The Master may require the above-appointed executor to provide security for estate debt. This will usually take the form of a security bond from a short-term insurance company for the value of the assets reflected in the preliminary inventory and this might cause further delays and costs. A well drafted will usually contains a clause specifically exempting the nominated executor from having to furnish security.
6. A person distress over the death of a loved one is faced with many requirements from the Master and often has no idea where to start. While he or she may administer the estate unassisted (provided the Master agrees, which does not happen easily) or if the estate is less than R125 000, there is no substitute for a competent executor. If the deceased left a will, the task of winding up the estate is made so much simpler. If there is a will, the instructions of the testator will be followed and the appointed executor will assist the family.
7. Inconvenience and unpleasant situations of heirs squabbling over who gets what could easily arise if there is no will.
8. When you die without a valid will and you leave behind minor children, their inheritance must be paid into the Guardian's Fund until they reach majority. Not only can the rate of interest be low, but other difficulties may arise. For example, if a husband dies leaving a valuable property, the wife and major children may be forced to sell this asset in order to raise the money to be paid into the Guardian's Fund.
9. A minor heir may be immature or handicapped. With a valid will the testator can set up a testamentary trust which stipulates that the assets are to pass to him or her at the age of 25 or 30. However, where there is no will, the assets are automatically paid out when the minor heir turns 21 which can be highly disadvantageous.
10. For the more sophisticated planner, a valid will can be used as an effective tax planning tool. For example, the deceased's estate duty position can be reduced by means of bequests in the will to a surviving spouse or charities as well as the optimum use of the R3.5-million abatement.

The type of disposition left to the heirs in the will, for example, a usufruct, fideicommissum, an annuity charged personally, or a discretionary trust, can in turn impact directly on the income tax and estate duty position of those heirs. Of course, if you do not have a will, you cannot benefit from these planning strategies.