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What should a South African will include? A properly drafted will should do far more than name the people who will inherit your assets. It should provide clear instructions for administering your estate and anticipate the circumstances that may affect your family and beneficiaries after your death.
ALSO READ: What a valid will actually protects
“A sound will must look beyond the simple distribution of assets. It should anticipate the practical decisions that will need to be made when the estate is administered,” says Johann van Vuuren, Estates Manager Inland at Legatus Trust.
According to Van Vuuren, every will must be drafted around the testator’s personal, family and financial circumstances. However, there are five essential provisions that should receive careful attention.
1. Revocation of previous wills
A new will should clearly revoke all previous wills, codicils and other testamentary documents. This clause confirms that the latest will contains your current wishes and is intended to replace earlier instructions. Without clear wording, uncertainty may arise about whether an older document remains relevant or whether several documents must be read together.
The original signed will should also be stored safely. Your family, nominated executor or trusted adviser should know where it is kept so that it can be located after your death.
2. Nomination of an executor
The executor is responsible for administering your deceased estate. This process may include identifying and protecting assets, dealing with creditors, preparing the required estate accounts, paying liabilities and distributing the remaining assets to beneficiaries.
Your will should nominate a suitable executor and preferably name an alternative in case your first choice dies, is unable to act or declines the nomination. The person named in the will must still be formally appointed by the Master of the High Court. If no executor is nominated, or the nominated person cannot act, the heirs may need to nominate someone for the Master’s consideration.
The choice of executor should therefore not be treated as a formality. The person or institution must have the knowledge, capacity and integrity required to administer the estate properly.
3. Provision for a testamentary trust
An inheritance does not always have to be transferred directly to a beneficiary. A testamentary trust may be appropriate where beneficiaries are minors, financially inexperienced, vulnerable or unable to manage substantial assets independently.
The trust is created through the will and begins operating after the testator’s death. The will should identify the trustees and alternative trustees, name the beneficiaries and explain how the trust assets may be used.
For example, trustees may be authorised to pay for a beneficiary’s education, healthcare, accommodation and general maintenance. The will should also state when, or under which circumstances, the remaining assets may be transferred to the beneficiary.
4. Security requirements for executors and trustees
Depending on the circumstances, an executor or trustee may be required to provide security for the proper performance of their duties. A will may contain a clause requesting that the nominated executor be exempted from furnishing security. A trust provision may similarly address whether trustees should be exempted.
However, the Master of the High Court retains supervisory powers and may require security where the law allows or the circumstances justify it. A carefully drafted clause may help reduce unnecessary costs and administrative delays while still protecting the estate, trust and beneficiaries.
5. Powers and duties of trustees
Naming trustees is not enough. The will should give them the practical authority required to manage the trust effectively.
Depending on the purpose of the trust, trustees may need the power to:
- invest and reinvest funds;
- retain, sell or lease property;
- open and operate bank accounts;
- employ attorneys, accountants and financial advisers;
- pay income or capital for the benefit of beneficiaries;
- maintain and insure trust property; and
- manage businesses or investments held by the trust.
These powers should be broad enough to allow the trust to be administered efficiently, but clear enough to protect the beneficiaries and ensure that the trustees remain accountable.
Other circumstances a will should address
A well-drafted will should also explain what happens if a spouse, child or other beneficiary dies before the testator. Alternative beneficiaries should be named so that there is no uncertainty about where the inheritance must go.
Parents of minor children should obtain professional advice about guardianship and the management of their children’s inheritances. Simply leaving assets directly to a minor may create practical and legal complications. A person’s matrimonial property regime must also be considered. If you are married in community of property, your will generally deals with your share of the joint estate, rather than the entire joint estate.
The financial circumstances and marital status of beneficiaries may also influence how an inheritance should be structured. In certain cases, a trust or carefully drafted exclusion clause may provide greater protection than a direct inheritance.
Professional will drafting provides certainty
There is no single will that is suitable for every person or family. A parent of minor children, business owner, member of a blended family or person supporting a vulnerable relative will each require different provisions.
Templates and do-it-yourself wills may overlook important legal and practical considerations. A professionally drafted will helps ensure that the document is valid, internally consistent and suitable for the testator’s circumstances. “A will should create certainty for the people left behind,” Van Vuuren says. “The clearer the instructions are, the easier it is for the executor and trustees to carry out the testator’s wishes.”
A sound will does more than distribute property. It protects beneficiaries, provides practical guidance and reduces the possibility of unnecessary delays, costs and disputes.
This article forms part of the Estate Matters series, presented by Legal Notice Publishing in partnership with Legatus Trust, specialists in South African estate planning and professional will drafting.
For professional estate-planning and will-drafting services, contact Legatus Trust:
Johannesburg: +27 861 722 626
Cape Town: +27 21 914 4925
Email: info@legatus.co.za
