Top Tips for Drafting Your Will

Drafting a will is one of the most important steps in securing your legacy and ensuring that your assets are distributed according to your wishes. Without a will, your estate will be distributed in terms of the Intestate Succession Act, which may not reflect your true intentions. Here are the top tips for drafting a will that aligns with your wishes and ensures your loved ones are properly cared for.

Understand the Legal Requirements for a Valid Will

For a will to be legally valid in South Africa, it must meet specific criteria:

It must be in writing, either typed or handwritten.
The testator (the person drafting the will) must be at least 16 years old.
The will must be signed by the testator on every page, in the presence of two witnesses.
The witnesses must be 14 years or older and may not be beneficiaries in the will.

Failure to meet these requirements could render your will invalid, leading to potential disputes or intestacy.

Appoint an Executor You Trust

An executor is responsible for administering your estate after your death, which includes settling debts, filing taxes, and distributing assets to beneficiaries. Choose someone trustworthy and capable of handling financial and legal matters. If your estate is complex, it is advisable to appoint a professional, such as an attorney or the trust division of a bank, to act as executor.

Be Clear and Specific in Your Instructions

Ambiguity in a will can lead to misunderstandings and disputes among beneficiaries. Clearly specify who should receive what, including detailed descriptions of assets such as properties, vehicles, and investments. If certain beneficiaries are to receive specific items, list them explicitly. For example, instead of stating “my house,” specify the full address of the property.

Consider Guardianship for Minor Children

If you have minor children, it is essential to appoint a guardian in your will. This ensures that someone you trust will care for your children should both parents pass away. Discuss this decision with the chosen guardian beforehand to ensure they are willing and prepared to take on the responsibility.

Account for Your Digital Assets

In today’s digital age, assets are no longer limited to physical possessions and financial accounts. Consider your online presence—such as social media accounts, digital photos, and cryptocurrencies. Provide clear instructions on how these assets should be accessed and managed.

Keep Estate Duties in Mind

In South Africa, estates valued at over R3.5 million are subject to estate duty (a tax on the deceased’s net estate) at a rate of 20% for the first R30 million and 25% thereafter. When drafting your will, consider strategies to minimise these taxes, such as making use of the spousal rollover or setting up a trust. Consulting a financial adviser or estate planner can help you optimise your estate plan if you have various assets.

Update Your Will Regularly

Life changes—and so should your will. Major life events such as marriage, divorce, the birth of a child, or acquiring significant assets should trigger a review of your will. Even without major changes, it’s wise to review your will every few years to ensure it remains current and aligned with your wishes.

Store Your Will Safely

Once your will is drafted, signed, and witnessed, ensure it is stored in a secure yet accessible location. Inform your executor and key family members of its whereabouts. Many South Africans choose to store their wills with attorneys, financial institutions, or in a safe deposit box for added security.

Seek Professional Advice

Drafting a will involves legal and financial complexities that can be overwhelming. Seek guidance from an attorney or a qualified estate planner to ensure your will is comprehensive, legally valid, and tax-efficient. Professionals can also assist with specific concerns such as trusts, offshore assets, or business succession planning.

Communicate Your Wishes

While the contents of your will remain private, having open conversations with your family about your wishes can help avoid misunderstandings. Clear communication fosters transparency and reduces the risk of disputes after your passing. It also ensures that your loved ones understand and respect your intentions.

Drafting a will is a vital part of financial planning and protecting your legacy. By taking the time to create a clear, legally sound document, you provide peace of mind for yourself and those you leave behind. Take the first step today to ensure your wishes are honoured and your family is provided for in the future.