Do you have a will? Why you need one and when to get it.

It’s a serious state of affairs in our country that South Africans are vastly under-exposed to. It’s hardly covered by the media or addressed publically by the government and it’s almost never blogged about, but it’s costing the relatives of South Africans hundreds of thousands of Rands every year. In fact, South Africa has one of the highest rates of intestate succession in the world.

What is intestate succession?

This is essentially what it’s called when you die without a valid will. The state steps in to administer your estate and the rules which it follows will differ somewhat depending on where you lived. According to Tom Deans, president of Détente Financial Corporation in Canada, nearly 50% of people globally die without the existence of a valid will. Note that this does not apply to private contracts such as a life insurance policy. Any such policy is automatically paid out to the listed beneficiary, regardless of the state of your will.

- Life insurance policies are not affected by the lack of a will or subject to government control during intestate succession

What is a valid will?

There are one or two different forms but the most common is the standard ‘last will and testament’ which allows you to bequest (or allocate) specific assets to specific people under specific circumstances. For this kind of document it’s recommended that you have a lawyer assist you but they’ve also become so simplified that you can complete one online these days within 15 minutes. This is fine if your estate is uncomplicated, but if we’re talking about lots of relatives and a larger estate with multiple properties then you’ll be wanting assistance from an attorney. 

This type of will is not to be confused with a ‘Living Will’ – which is actually a set of directives regarding whether to prolong your life with medical devices should you become incapacitated. 

Why is a will important right now?

If you got hit by a bus on your way home today and you had no will, you have to consider the repercussions for your loved ones. Firstly, your accounts may be frozen while the state prepares to step in and manage your estate. If you’re the bread winner, then your spouse is immediately left in financial trouble – the involvement of dependants will make this strain even more extreme. 

If the government steps in, it could take a long time for it to investigate your estate and that time isn’t free, it gets charged to your estate. In the meanwhile, you could have relatives petitioning for a cut of your estate, causing friction and potentially resulting in your resources going to relatives you may never have considered as beneficiaries. Your spouse will now be fighting a bitter struggle at a time in which they’re distracted by grief. 

How does intestate succession work?

The government will look at your most direct relatives first – namely your contractually bound spouse (married only) and your children.

- Adopted and illegitimate children are legally considered to be your descendants

Here’s how your estate will be broken down:

If the deceased is survived by a spouse or spouses, and has no living descendants, the spouse inherits the estate. If deceased was a husband in a polygamous marriage, the surviving spouses will inherit in equal shares.

If the deceased is survived by a descendant, but not by a spouse, the descendant shall inherit the estate.

Where there is a living spouse or spouses and descendant/s, each spouse will inherit R125 000 or a child’s share, whichever is greater, (this amount is fixed from time to time by the Minister of Justice). The children will get the balance of the estate, and if a child is deceased and has descendants, that child’s portion will go to their surviving spouse and dependants.

If the deceased leaves no spouse or descendants, but both parents are alive, the parents shall inherit the estate in equal shares.

If the deceased has no surviving spouse or dependants but has only one surviving parent, the parent inherits half the estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent shall inherit the estate.

If the deceased is not survived by spouse, descendant or parent but is survived by descendants of the deceased mother or father who are related to the deceased through the parents. One half of the estate divided equally among the mother’s descendants and one half of the estate divided equally among the father’s descendants.

If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, the other blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.

Where there are no relatives, and the assets have not been claimed by a legitimate heir after 30 years, the estate is forfeited to the state.

Life Partners: Heterosexual and Same-Sex

Regardless of how long you’ve lived together, your unmarried life partner is not entitled to anything should you die without a valid will in place. Any children you’ve had with that partner fall into the illegitimate dependant category (which means they follow standard succession) and will inherit accordingly. 

A frequent misconception is that ‘common law spouse’ is a legally recognised status here in South Africa – but it isn’t. The truth as it stands now is that no amount of time spent living with another person will evolve a cohabitation relationship into a legal marriage. 

- No such thing in South Africa as a ‘Common Law Spouse’

This means that however long you’ve been with your life partner, your blood relatives could leave them with nothing, and they would still have to look after any children you’ve had – with potentially no access to the money those children have inherited. 

The Domestic Partnership Bill is a work in progress which will give one greater protection and recognition to unmarried partners but there is no final date set for it to be enacted into law. 

Arranging your will

This is one of the most responsible and important things you can do for your family, and in South Africa it is actually inexpensive and typically very quick. You can find forms online or visit your insurance company, accountant or lawyer for advice on how to set up your last will and testament. Remember that a handwritten note may well not be considered as a legally valid will and once you have your will you need to ensure that your family members can locate it should the worst come to pass. 

It’s never pleasant to think about your own death but thinking about the alternative is worse – take firm action today.