Drawing up your own will: is professional assistance really necessary?
Many people decide to draft their own wills to save costs. However, there are legal requirements which must be complied with for a will to be valid. Often these are not known to the lay person resulting in an invalid will when it is lodged at the Master’s Office.
This may lead to a costly High Court Application where the will is declared (in)valid, or the deceased’s estate being administered as if they had never executed a will.
The above may result in individuals inheriting assets other than according to your wishes as well as unhappiness and conflict amongst your family.
In addition, there are many issues which may need to be dealt with in a person’s will, which might be omitted unless professional advice is sought. For example, many people believe that a letter of wishes is sufficient for the distribution of specific assets to specific heirs. However, this is not a legally binding document. If the beneficiaries of your will are prepared to abide by your letter of wishes insofar as the distribution of assets is concerned, then that is in order. However, should they disagree then the assets must be dealt with strictly according to the will.
What if there are minor children that stand to inherit?
In terms of South African legislation, a minor child (under the age of 18) cannot inherit assets directly and would therefore need to be in the care of a legal guardian. Parents, therefore need to consider who will look after their children’s daily needs and who will look after the money or assets their children stand to inherit. The reasoning behind this is that minor children do not have the legal capacity or the ability to deal with such assets in a constructive way, or without the consent of their legal guardian.
To ensure that a minor’s inheritance is protected until becoming an adult, parent(s) can set up a trust. Such a trust can be set up during their lifetimes (an inter vivos trust) or in terms of their will(s) to be established on their deaths (a testamentary trust). Although the process for setting up these trusts may differ, the end result is the same, namely that the minor’s inheritance will be administered on his or her behalf by the appointed trustees of the trust.
A trust can own property, receive donations and inherit money from your estate when you die. What makes a trust attractive, is the fact that its decisions are taken by the trustees you appoint at your discretion. It requires you to consider carefully who you nominate, but fortunately, the actions of the trustees are also regulated and they are required by law to always act in the best interests of the beneficiaries and to manage the trust in accordance with the law and the provisions of the trust deed, the provisions of which can be defined by you.
The danger in not providing for a trust is that any funds bequeathed to a minor child, will have to be paid over to the Guardians Fund. The Guardian’s Fund falls under the administration of the Master of the High Court and administers funds that are paid into it. Guardians of minors can claim maintenance from this fund, which would typically include school and university fees, clothing, medical fees, housing, and any other costs that can be motivated by the guardian. Unfortunately, claiming from this fund can be time-consuming and leave your child at the mercy of officials that have to deal with numerous claims. A trust on the other hand provides for persons who are directly responsible to have the best interests of your children foremost in mind.
We would recommend discussing the option of a trust with your estate planner as well as the options of possible trustees for your family trust when you review your current estate planning.
This article should not be used or relied upon as professional advice and is for information and marketing purposes. Please consult with one of our attorneys should you need legal assistance relating to this area of law.