By Chrisna Strydom (Director l Attorney l Conveyancer l Notary)
THE RISKS
If a person dies without a Will, the assets he owned at the time of death (deceased estate) will be distributed in terms of the Intestate Succession Act.
A Will can be seen as a set of rules set out by the deceased. If there is no Will, then the Intestate Succession Act will apply regarding the distribution of assets in the estate.
The Act aims to distribute the deceased estate to close relatives first. The Act will have to be read closely as there is a specific order as to how it will be distributed. A frequently asked question is also what if the deceased had no relatives. The deceased estate will then be forfeited to the State. The money will be placed in the Guardians Fund and if no heir comes forward to claim the money within 30 years, same will go to the State.
An executor will have to be appointed to carry out the administration duties and seeing that there is no Will, the intestate heirs may nominate a person to be appointed however the final decision of who will be the executor will lie with the Master of the High Court. It means that this may lead to a delay in the procedure, additional costs and frustrations for the deceased’s family.
If the deceased had children and it might happen that both parents of the children are deceased, then his/her wishes will not be considered as there is no Will to nominate a guardian. The children might be placed in the care of someone they are not familiar with. It should be noted that the best interest of the children will always be taken into account.
THE REQUIREMENTS
There are specific requirements a Will must comply with which are regulated by the Wills Act 7 of 1953.
The requirements are as follows:
- A person must be over the age of 16 (sixteen) years.
- The Will must be in writing. This means it can be typed or handwritten. If it is handwritten, the person who writes it cannot be a beneficiary in the specific Will.
- Each page of the Will, including the last page, must be signed by the testator. The Will must also be signed by two competent witnesses. The witnesses must be aged 14 years and older.
The above is merely a summary of the risks and requirements and should you need assistance with drafting of your will, kindly contact our offices.
