As we approach Wills Week 2024, it is crucial to understand the value of having a well-structured will, as well as the potential challenges of dying intestate (without a will).
In South Africa, many individuals overlook the importance of drafting a will, often underestimating the impact of dying without one. This decision, however, can have significant consequences for the surviving family members, who may face unnecessary emotional and financial stress, as well as delays in accessing their rightful inheritance.
The Freedom to Appoint an Executor
South African law grants individuals the freedom of testation, allowing them to distribute their assets according to their wishes. This includes the ability to appoint an executor, who will manage the estate, settle any debts, and distribute the remaining assets as determined in the will. The role of an executor is vital in ensuring that the deceased’s wishes are honored, and that the estate is administered efficiently.
In the absence of a will, there is no clear direction on how the estate should be handled, and the matter falls under the jurisdiction of the Master of the High Court, who must follow the Intestate Succession Act 81 of 1987. Without a will, no executor is appointed, leaving the grieving family and heirs to nominate one themselves. However, the Master of the High Court has the discretion to reject the family’s nominee and appoint another executor, known as an executor dative. This process can be time-consuming, particularly if the family members cannot reach a consensus on who should be appointed.
Complexities of Intestate Succession
When the Master appoints an executor for an intestate estate, they may require the executor to provide security, which can be an additional financial burden on the estate. However, with a will, the deceased can include provisions to prevent this requirement, thereby saving the family from extra costs.
Dying without a will means that the estate will be distributed according to the rules of the Intestate Succession Act, which prioritizes blood relations. Even if the deceased’s loved ones were aware of their final wishes, the Act must be followed strictly, often leading to outcomes that do not align with the deceased’s intentions. In some cases, assets may need to be liquidated to satisfy the requirements of the Act, resulting in the sale of property, vehicles, and other belongings, further complicating the winding-up process.
Impact on Minor Children and Guardianship
The absence of a will may have severe consequences for minor children, particularly if both parents are deceased. In such cases, there may be uncertainty regarding who should be appointed as their guardians, leading to potential disputes within the family. The emotional burden on the children, combined with the uncertainty surrounding their future, can be overwhelming.
Without a will, the children’s inheritance would be held by the Guardian’s Fund at the Master of the High Court until they reach the age of eighteen. This situation prevents family members or friends from establishing a trust to protect the children’s assets or attaching conditions to the benefits of the estate to safeguard their future.
Make Your Will a Priority
While death is inevitable, the peace of mind that comes from having a carefully structured will cannot be overstated. It is essential to prioritize the drafting of a will to ensure that your assets are distributed according to your wishes and that your loved ones are protected from unnecessary stress and uncertainty.
Take the time to consult with a legal expert who understands your unique needs and can guide you in exercising your right to freedom of testation. Your loved ones will be eternally grateful, remembering you as you would want them to.
Article by Sophia Steyn, Associate (LLB)
For enquiries, kindly contact Sophia on 044 601 9900 or sophia@rgprok.com. www.rauchgertenbach.com
