You might not like to think about writing your last will and testament, but the fact is that this document is very necessary, for a number of reasons. If you have any kind of property, money, investments, insurance, or even possessions that you want certain people to have, it's important that you take the time to write a will. We're taking a look at why a will is necessary, and how you can go about writing one. It's quite easy, so don't worry!
What Is a Will?
A will is a legal document that states your wishes for what happens when you die. In general, most people use a will to say how and to who they would like their property or money or other assets divided. However, you can also use a will for other things, such as saying what you would like to happen to your body after you’ve passed away, or even what you would like to happen before you die if you become too sick to make your own decisions.
In South Africa there are certain laws about what makes a will legal:
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You must be at least sixteen years of age;
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The will must be written on paper;
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You must have two witnesses (who must be at least 14), who both sign the will, and
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You yourself must sign the will and initial every page.
Why is A Will Crucial
Although it's not really a nice subject to talk about, writing a will is very important. Should you die without a will you will die intestate, meaning that you have made no decisions about what happens to your assets. Dying intestate can result in long legal processes before your relatives can make any claims on your assets. There are two reasons why this could take a long time. Even with no problems, a government official must decide how assets are to be divided if there is no will, and as we all know, government processes aren't always speedy! Secondly, there could be problems, as relatives may not be able to agree on how assets should be divided.
And that brings us to another reason to write a will: preventing family arguments. Without a will any member of your family can claim anything they want, and that can result in fighting and again, in legal proceedings. Imagine, for example, that your life insurance pays out a good sum of money. Relatives could end up fighting about this cash, which is the last thing that you want.
You also need to think about your wishes. The law tends to divide the deceased's assets in a certain way, and that may not be what you want. If you aren't married but have a partner, for example, legally that partner won't have any claim on your assets, meaning that your money could instead go to a distant relative that you might not even know! In general, assets first go to your spouse if you are legally married, and then to children, before other, more distant relatives are considered. But even this can be a problem if, for example, you have been married twice and have children from your first marriage who may claim assets before your second wife/husband.
Finally, you also need to think about your dependants. If you have small children, or sick or disabled family members that depend on you, it's important that you write a will that says these people will be looked after financially.
All that being said, just how do you go about writing a will? Here are our tips for writing your last will and testament.
If You Write Your Own Will, Use a Will Template
You can write your own will if you wish. In general, it's best to use a lawyer to write a will, that way you'll know that what you have is a solid legal document. But if you can't afford to hire a lawyer then at least use a will template. You can find many of these online, and should compare two or three to make sure you're doing things right! An example of a will can be a good guideline.
Consider the Executor of Your Will Carefully!
A will usually has an executor – a person that you name who will make sure that your wishes are carried out properly. An executor will be able to negotiate in your name once you have passed away, deciding things such as which is the best offer to buy your home, for example. Obviously, this should be a person that you trust. It should also be someone not too much older than you, and who is in good health (or else you might need to choose another executor in the future). Many people choose their partners or grown up children to do this job. If someone is likely to contest your will (if you think that what you decide might make some people unhappy), then you might want to choose an independent executor, someone who won't benefit from your will at all.
Think About a Living Will
You might also want to think about including a living will. This is a will, or part of a will, that states your wishes should you become very ill and unable to make your own decisions. A living will generally has instructions for doctors (such as whether or not you wish to be kept on life support), but may also include things such as who you want to be responsible for your finances if you are unable to make decisions.
Remember Guardianship
If you have small children or other dependants you should include a segment in your will about who will become the guardian of these. In the case of small children especially it's important that if something happens to you they are immediately taken into the care of a close friend or relative. This avoids kids being moved around between relatives, or even taken into the care of the state if relatives fight over custody.
Consider a Testamentary Trust
Don't be put off by the word testamentary! A testamentary trust can be important if your children are young or if you feel they are irresponsible. If you include a testamentary trust in your will it will let a trustee take care of financial matters and either keep young children's money for a time when they're old enough to take care of it, or distribute the money as an allowance, for example, rather than as a lump sum.
Think About Your Witnesses Carefully!
As long as they are over 14, technically anyone can witness your will. However, in most cases it's a good idea that the witnesses are NOT beneficiaries of your will, meaning that the witnesses will not receive any money. This helps prevent problems later in case someone decides to contest your will and says that the witnesses influenced you to give them certain amounts of money.
Will Revisions are Normal
It's totally normal that you go back and make revisions to a will. Maybe your children are growing older, or maybe your assets have changed. You should look over your will at least once a year and make sure that everything is still in order. If you decide to make changes and to write a new will make sure that at the beginning of the new will you revoke (make invalid) any old wills (which again, prevents problems later).
Keep Copies of Your Will
You should keep at least two copies of your will, preferably with one copy going to another person such as an attorney or being kept in the bank. Make sure that at least one person (usually the executor) knows where a copy of your will is kept!
If you have any doubts at all about what you're doing you should always get advice! And if you have complicated finances (like if you're a business owner, for example) it's always best to get a professional to do the job.
Having a will can make a huge difference to your family. Without one, your family may be forced into legal proceedings, and might not see the assets that you wanted them to have. In the same way as it's important to have life insurance to financially care for your family, it's also important to have a will. For your own peace of mind, and for your family, write a will! That way you'll know that should something happen to you, your wishes will be honoured and your family will be taken care of.
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Main subject: will
