Have you drafted a Will and not yet signed it? If so, the best interests of your loved ones will not be protected in the event of your untimely death. An unsigned Will can cause immense complications and means that your estate will devolve in terms of the Intestate Succession Act, which determines the deceased’s heirs – not necessarily as you would have chosen.

Graham McPherson, CEO of First National Bank (FNB) Trust Services, says: “This is only the onset of the dilemma, as Intestate Law is also affected by your marital status upon death. If, for instance, you are not married and have no children, your entire estate will devolve to your parents in equal shares. Should only one parent be alive and you have three siblings, half of your estate will be left to the surviving parent, whilst the other half will pass to your siblings.”

If you are married In Community of Property (ICOP) but have no children, your entire estate will devolve to your surviving spouse. If you do have children, half the estate will automatically belong to your spouse, while the other half will be divided equally among your spouse and dependents (bearing in mind that the surviving spouse must inherit a minimum of R125 000).

Should you be married Out of Community of Property (OCOP) and have no children, the same rules would apply as is you were married In Community. If, however, there are children, your entire estate would be divided in equal shares among your spouse and dependents (with your spouse also privy to the R125 000 minimum).

McPherson adds: “If you die without a valid Will, your heirs will also have to find an Executor to administer the deceased estate. This places undue emotional strain on your loved ones in their time of bereavement, as they have to source the services of a bank, trust company, attorney and/or accountant with whom they will likely have had no prior dealings.”

The Intestate Succession Act regards adopted children as the true offspring of the deceased adoptive parent and thus they will benefit as true heirs of the deceased estate. Extra-marital children are also no longer disqualified from inheritance and will benefit from the deceased estate, both on the paternal and maternal sides. This poses hiccups, especially in cases where the existence of the children was unknown or kept secret. If your heirs are minors, the estate will have to be reduced to cash – unless the major heirs are able to raise sufficient cash to pay the minor heirs their share of the inheritance. As no testamentary trusts would have been established, the cash inheritances the children receive will have to be placed into the Guardians Fund (controlled by The Master of the High Court) by law, until they reach the age of majority, currently 21.

Obviously, the minor children through their appointed Guardian can approach the Guardians Fund for income and capital distributions to be effected to pay for the maintenance, education and general well being of the minor children. A major drawback is that funds held in the Guardians Fund are invested in cash and fixed income deposits. Over a longer period (say 10 to 15 years), investments such as these have historically not outperformed equities, bonds and gilts, by not keeping abreast with inflation. Another complication that arises if there is no Will in place and also no natural guardian is that the closest relatives to the deceased will have to apply to The Master of the High Court to be appointed as guardian of the minor children.

McPherson adds: “This is not the ideal situation to leave your loved ones in. At FNB Trust Services, we believe that with every financial transaction you enter into during your lifetime – purchasing a home or car, making an investment, taking out a life policy or even opening a cheque account – it is imperative that you revisit your Will together with your financial planner, so as to ensure that your affairs are in order at all times.”

Although the drafting of your Will appears to be the easy part, the delays actually occur once the document has been drafted but has to be sent for signatures. “For some reason, even though payment has been made, clients tend to be far too busy in the workplace to take the 30 minutes to sign their Will,” McPherson says.

“Mothers are often in the same predicament. If they’re not at work, they are ferrying children and attending extra mural activities. So, to get both husband and wife into our offices at the same time to sign their Wills can sometimes be quite a challenge.”

McPherson advises clients to draft two separated Wills, which alleviates the need for both spouses having to be present to sign one document. Although it makes sense, from an estate administration perspective, to provide clients with a single Will, original Wills still have to be submitted to The Masters Office with other standard documentation to finalise the estate.

Often also, the surviving spouse postpones reviewing their own Will after this major change to their Estate, and in some cases their Will is never again reviewed. “If the surviving spouse dies unexpectedly,” adds McPherson, “we as Administrators at FNB have to get a certified copy of the original Will from The Master of the High Court, delaying the conclusion of the estate.”
FNB Trust Services is currently implementing faster processing systems to ensure that Wills drafted are signed within an acceptable timeframe and so reduce the risks facing clients and Executors.

Who can make a Will?
Any person who is over the age of 16 and of a sound mind.

Signing Process
In terms of the Wills Act 7 of 1953 it is important that the Will is signed correctly. Failing to comply with the Act could result in the Will being contested. To ensure that a Will is signed correctly the following should apply:

The Will must be signed by the testator in the presence of at least two competent witnesses, on the last page. On the last page of the Will, the Will must be domiciled and dated.

The witnesses should not be beneficiaries in terms of the Will and this goes as far as even a spouse of any beneficiary should also not sign as a witness. Any amendments to the Will, the testator and two competent witnesses need to sign in full next to the amendments and in the presence of one another.

Alterations to your Will
Anybody can alter his/her Will at any time prior to death.

For more information go to www.fnb.co.za

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