Drafting a will is not quite as simple as jotting down your last wishes on paper. Follow the advice of four legal experts to ensure that your estate is properly executed.
Put it in writing and keep it safe
“Do not neglect to have a will drafted as a verbal will does not have any force or consequence,” warns Kim Armfield of Kim Armfield & Associates.
Furthermore, she suggests leaving the original will in safekeeping, either with the professional who drafted the will or with
someone who can be trusted.
“Try and keep all important documents in a safe place, so that it can be handed to the executor of your late estate,” she adds. Such documents may include life and investment policies, funeral policies, mortgage statements or details of any long-term liabilities, and your marriage certificate or contract.
You might outlive your beneficiaries
“One very often tends to forget that your
loved ones to whom you have bequeathed assets may themselves predecease you,” Armfield notes. “In such an event, it is important to stipulate in your will who would then receive these benefits.”
Make provision for sufficient cash flow
Karen Zaaiman of Smuts & Co. Attorneys stresses the importance of ensuring that
your beneficiaries are financially covered. “Ensure that you either have enough cash in your asset portfolio or sufficient life cover to cover all outstanding amounts owing on all assets – especially fixed assets,” she says.
Zaaiman also notes that an estate takes a minimum of six months to be finalised. “Therefore, you need to ensure that your partner has enough cash to maintain a property for that period,” she says.
“When you leave property to an heir, you need to ensure that it is a practical inheritance; for example their income must be able to cover future expenses like maintenance, rates and taxes,” Zaaiman suggests.
Ensure minors are taken care of
Where minors are involved, Zaaiman strongly recommends a testamentary trust, which will allow you to appoint the persons who will be looking after finances on the children’s behalf. “Also ensure that you appoint a suitable guardian for minor children,” she adds.
You might have to appoint a curator bonis
“It is sometimes necessary to have someone appointed by the court to administer the estate of a living person,” says attorney Clarence van Vuuren. “That person is called a curator bonis and is appointed where a person is no longer able to conduct his or her own affairs, often as a result of an illness like Alzheimer’s disease,” he explains. He adds that appointing a curator bonis is especially important where family members disagree on the best interests of the affected person or one family member is exercising an undue influence over said person.
Add a collatio clause
“Where a beneficiary of an estate, who is also a descendant of the deceased, has received certain gifts or loans from the deceased during his or her lifetime, said gifts or loans must be taken into account when the estate is being divided among all the heirs,” explains Marina Horak of Horak Inc Attorneys.
She suggests adding a collatio clause to
your will, in which it is explicitly stated that any heirs who have received gifts or loans needn’t pay anything back into the estate.
