Appointing guardians
Maintenance
Disabled dependants
Estate duty payable
Living together
Offshore assets
Common law marriages
Second and further marriages
Organ donation
Funeral arrangements
Provisions clauses
Addenda to a will (codicil)
Description of all assets
Ambiguous terms
Complex business activities
Unfinalised contracts
Insolvent heirs
Accrual claims
If the heir refuses

Appointing guardians

You can stipulate in your will that your children's inheritance be administered in trust until he or she reaches 18 years (or any later age that you may choose).
Trustees manage assets in the best interests of minors. Guardians on the other hand look after minor children. Guardians are only called for if both biological parents are deceased.

Maintenance

If you should divorce your spouse, you may be obligated to pay maintenance. These obligations may be placed on your estate as well. Some of the issues that may come to the fore:

• If a spouse is left needing maintenance, he or she could lodge a claim against your estate. Factors that may influence such a claim are inter alia the duration of your marriage, the age of the living spouse, his or her ability to find work, the degree to which he or she has assets to put towards own care, the extent of your estate and the degree to which your spouse contributed to that estate.
• In terms of our laws, you have an obligation as a parent to look after your children – until they are self-sufficient and not necessarily until they're 18. The fact that your child may have been born out of wedlock will not stand in the way of a maintenance claim against your estate.

A testamentary trust is by far the best mechanism to comply with all maintenance demands. By placing a capital amount in a trust that can generate sufficient income, the maintenance claim will be served and the capital also protected for your eventual heirs.

Disabled dependants

Disabled dependants require greater care, for which you should make provision in your will. A testamentary trust is an ideal vehicle for this.

Objective trustees that will administer the disabled person's inheritance in trust will be able to fulfil in this need.

Estate duty payable

Where the possibility exists that estate duty may be payable at your death, it is important to do a proper estate planning.

Firstly make sure that you lessen the tax through proper planning of your estate. Ensure that there is sufficient cash to pay this tax; otherwise it may lead to the forced sale of estate assets.

Living together

In cases where you live together with another person, both parties frequently contribute to the household (as with a marriage) and collection of assets without registering any assets on both parties' names or fully accounting for assets. The identification of assets therefore is very important.

To avoid friction and fighting amongst heirs, it is advisable and practical that you and your friend decide together how your assets will be inherited. This doesn't necessarily mean that you have to have a joint will.

Offshore assets

If you should have offshore assets when you die, you'll also have a foreign estate that will have to be administered.

Each country has its own legislation dealing with inheritance and the signing of wills. Your South African will won't necessarily meet with the legal requirements of the country where your assets are. That might mean that your foreign assets won't be inheritable in terms of your only will.

It is important therefore that you should have more than one will: for your South African assets and for your foreign assets, which complies with the laws of the country where your assets reside.

Common-law marriages

Die matrimonial law in terms of which the couple is married has a major influence on the inheritance of their assets.

In traditional marriages and those conducted according to own customs, the inheritance of assets is usually influenced by very complex rules. Some of these rules could be bypassed by drafting a valid will.

Second and third marriages

Second and third marriages require careful planning of your will. The relationship between the stepchild and parent is a potential source of conflict. The second spouse and the children from the first marriage should ideally inherit separate assets.

Organ donation

If you want to donate organs, it should not be stipulated in your will. Your will only comes into effect after your death. Organ donation is only of value if you are declared brain dead while your body is still functioning.

Your next of kin will therefore have to give permission for an organ donation. Make sure you pass on your wishes to them.

Also contact the Foundation for Organ Donors toll-free on 0800 226611 for more information.

Funeral arrangements/cremation

It is not advisable to describe your wishes for your funeral arrangements or cremation in your will. The content of your will is frequently only read after the funeral, which makes it too late to see to your wishes. Rather convey such wishes to your next of kin before your death.

Provisions clauses

Provisions clauses linked to an inheritance that had not been properly thought through could leave an heir severely hamstrung even though it was not the intention. If you are unsure of attaching any provisos to an inheritance, rather get advice from an expert. Sanlam Trust can help.

Addenda to a will

Avoid any addenda to a will, since it carries risks. The law sets strict requirements to which one must comply and which could cause both the will and addenda to be invalid.

Rather incorporate that which you want to describe in the addenda into the main body of the will and avoid the risk.

Description of all assets

It is not advisable to try and describe all your assets in your will. You risk leaving out assets obtained later.

Describe only those assets that will be bequeathed to specific heirs and bequeath the rest of your assets in set proportions to specific heirs.

Ambiguous terms

Terms such as "cash" and "movable goods" should not be used unqualified in a will, since this may be interpreted in different ways. This could lead to serious problems and fighting amongst heirs.

Complex business affairs

It is important that you make provision for the transfer or continuation of your business after your death.

This should ideally happen while you're still alive and by way of agreements with partners and shareholders. It is vitally important that agreements must be in writing and not be only verbal. Verbal agreements are very difficult to prove after the death of one party.

Unfinalised contracts

Your death does not mean the end of contracts entered into before you died, unless it was a contract of a personal nature that requires your personal skills.

In all other cases, the executor of your estate is bound to your contracts. It may be necessary to grant express and specific authorisation in your will to the executor in order to execute contracts.

Insolvent heirs

If some of your heirs are insolvent at your death, their inheritances will form part of their insolvent estates and will be used to pay creditors.

To avoid this, the benefits should not be bequeathed directly to the heir, but to a discretionary testamentary trust to be administered to the benefit of such an heir until rehabilitated. This way, the heir's inheritance will be safeguarded for him and his children.

Accrual claims

If you and your spouse are married under the accrual system, the spouse whose estate accrues the least in value during the marriage will have a claim against the spouse whose assets grow the most.

The abovementioned claims is handled just like any other claim against the estate of the deceased. It is critically important that you plan your estate accordingly.

If the heir refuses

Much has been said about wills being your last word here on earth. They could also be described as a manual for the execution of the last wishes of the deceased. This is not wrong, but what about the wishes of the heir? How does this affect him or her?

Normally one doesn't hear from those who inherit, that they complain or get involved in court cases. It may sound strange to say that a person does not need to accept an inheritance, but it can happen - usually for financial reasons. It is known in legal circles as doctrine of election. In more fancy language it is known as adiation (acceptance) and repudiation (refusal) of the inheritance as set out in a will.

To use an example: a father bequeaths certain assets to his son or daughter, but places a certain obligation on one of them, such as to stipulate that the heir must give a part of the inheritance to another member of the family.

In short, the doctrine of election makes it possible to receive something in exchange for the heir paying or giving something to another person. This is when the heir has the choice of accepting or refusing his inheritance.