Statistics show that around 86% of South Africans do not have wills! The risks of not having a properly drafted will are immeasurable, and can affect your family in so many ways.
“It’s really important to get someone with the right knowledge and experience to draw up your will based on your specific needs,” says Estelle Scholtz-Mare, Head of marketing financial wellness at Momentum. “Confusing or unclear instructions can lead to challenges and legal action from people who may feel that they are not getting what they should, and this could end up costing your estate more in terms of any potentially unnecessary legal fees, estate duty or income tax.”
Here are 5 things that could happen to your money and your family if you die without a will:
1. Your assets won’t get distributed properly
If you die without a will in South Africa, will your money go to the state? This is a common misconception that just isn’t true, but there are still negative consequences. If you die without a will, your heirs will inherit from you in terms of the Intestate Succession Act, Act 81 of 1987. Basically the act sets out who will inherit your assets; it prioritises your spouse, children, grand children, parents and other relatives.
The only way your money will go to the state is if you die without any relatives and your assets have not been claimed by a legitimate heir after 30 years. In that case your estate is forfeited to the state.
But, if you don’t have a will, there could be delays in dealing with your estate. This means that your family may not get the income they need to survive if they are relying on an inheritance for expenses. Without a will, the beneficiaries of your estate will be determined by the law — including which relatives your possessions go to, and how your estate will be split up.
This means that your some of your possessions could even be given to someone in your family that you did not want to benefit.
2. 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.
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3. Your estate could face claims
If you are divorced and pay maintenance to a former spouse or children from a previous marriage, your estate could face claims unless you have provided for maintenance in a validly drafted and executable will.
4. Your children might not get what is theirs
If you have minor children and die without a will, anything they are entitled to receive will be held in the Guardian’s Fund until they turn 18. The money will be invested with the Public Investment Commission where it grows by earning interest for the beneficiaries.
The fund can be accessed by the people charged with raising the children when they apply for maintenance money. People who claim must be able to prove that they are responsible for raising the children, and must also give full details of the child’s expenses.
5. Your kids could be held in custody of the state
If one parent dies, the surviving parent will simply continue as the guardian of the minor child. If both parents die, and no guardian has been appointed in the will, any interested person may apply to court to be appointed as the guardian.
Although it is good practice to appoint a guardian of minor children in a will, there is no legal requirement to do so. The court will make the appointment after considering a number of issues, most importantly what it considers to be in the best interests of the child.
Over Wills Week, Momentum encourages South Africans to take time to speak to lawyers, financial planners and financial advisors about the importance of having a well drafted will,” advises Estelle.
For more information on wills, or to contact an advisor who can help you set up a will, visit momentum.co.za.