Many of us are familiar with the famous Benjamin Franklin quote, “There are two things which are certain in life: death and taxes.”
While we pay attention to taxes, we often ignore the certainty of death. Many of us are guilty of leaving the drafting of a will until we are much older, as we never imagine that tomorrow could be our last day.
However, the consequences of not having a properly-drafted will are huge and can affect your family in many ways.
When you die without leaving a valid will, it means that you haven’t left any instructions as to how you want your money, property, assets and personal belongings to be dealt with. In this case, any one of the following can happen:
The Executor of the Estate is the person responsible for carrying out the duties involved with the administration of an estate.
Normally, you would appoint a person whom you trust to attend to your affairs.
However, if you die without a will, your family may nominate someone but ultimately the Master of the High Court is left with the final decision of appointing someone to attend to your affairs, and it may not necessarily be the person whom you wished.
If when you die, you are survived by only your wife/husband (spouse), then s/he will inherit the entire estate.
Your partner could be left with nothing: If you live with someone but are not married to them, the law will not necessarily recognise your “common-law spouse” as a beneficiary of your estate unless you have left a will naming them as a beneficiary.
If you are only survived by your children (i.e descendants), then your children will inherit your estate in equal shares.
It is also to be noted that when you die without a valid will and are survived only by your children who under the age of 18 years, then their portion will be placed in the Guardian’s Fund (a fund administered by the Master of the High Court), and can only be accessed for specific limited purposes. This means that your children may not necessarily get what is theirs.
An illegitimate child can also inherit from both their natural parents and blood relations. An adopted child is considered to be the child of his/ her’s adoptive parents and not their natural parents.
In the event that both you and your husband/wife die together, and no guardian has been appointed in terms of a will, any interested person may apply to be your child/children’s guardian. If there aren’t any interested parties, your child could go into the care of the State.
If you are married in community of property, your husband/ wife will receive half of the joint estate PLUS R250 000 or a child’s portion (whichever is the greater), and the balance of your estate will be shared between your children equally.
In the event that one of your children dies before you do then your grandchild will inherit his/her parent’s portion.
If you die without a husband/wife or children, then your parents will inherit the estate in equal shares.
Should the circumstances not reflect any of the scenario’s outlined above and there is no heir in the deceased’s direct line, the general rule is that the nearest blood relation shall inherit will apply.
As you can see, the various scenarios are as exhausting as they are concerning! Having read them, we hope this encourages you to speak to an expert about drafting your will.
There are no certainties in tomorrow, but you can at least guarantee the processes that tomorrow will bring should you not live to see it.
Khashifa Ussuph Inc. is a multi- disciplinary legal firm. Khashifa can be contacted at [email protected]