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Appointing guardians
You can stipulate in your will that your children's inheritance be administered in trust until he or she reaches 21 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 21. 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 could be used 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.
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Disabled dependants
Disabled dependants require greater care, for which you should make provision in your will. A trust is an ideal vehicle for this.
Objective trustees who will administer the disabled person's inheritance in trust will be able to fulfil this need.
Estate Duty payable
Where the possibility exists that estate duty may be payable at your death, it is important to do 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.
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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 in 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 partner 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 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 have a will dealing with your South African assets and a will dealing with your foreign assets.
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Common-law marriages
The matrimonial property regime in terms of which a couple is married will have a major influence on the division of their assets.
In customary law, the division of assets is usually influenced by very complex rules.
Second marriages & stepchildren
Second marriages require careful planning of your will. The relationship between the stepchild and a new spouse is a potential source of conflict. The new spouse and the stepchild from the first marriage should ideally inherit separate assets.
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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.
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Conditional bequests
Conditions linked to an inheritance that had not been properly thought through could leave an heir severely disadvantaged even though it was not the intention. If you are unsure of attaching any provisos to an inheritance, rather get advice from an expert. Glacier Fiduciary Services can help.
Codicil (Addenda to a will)
Codicils should be avoided. A codicil must comply, and should the codicil not comply with these requirements, both the will and the codicil could be regarded as invalid.
Rather incorporate that which you want to describe in the codicil into the main body of the will.
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Description of all assets
It is not advisable to try and describe all your assets in your will. You may leave out certain existing assets as well as assets obtained subsequent to the drafting of the will.
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 without qualification in a will, since these terms are open to misinterpretation and could lead to a dispute amongst your heirs.
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Complex business affairs
It is important that you make provision for the transfer or continuation of your business after your death.
These arrangements should be made while you're still alive. A written agreement should be drawn up with partners and co-shareholders. Agreements must be in writing due to the difficulty of proving an oral agreement after the death of one party.
Unfinished 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 performance.
In all other cases, your executor is bound by contracts entered into before your death. It is therefore necessary to grant specific authorisation in your will to the executor to carry out such contracts.
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Insolvent heirs
If an heir is insolvent at the time of your death, the inheritance will form part of the heir's insolvent estate and will be used to pay creditors.
To avoid this, a special clause should be inserted into your will in terms of which the benefits will not be bequeathed directly to the heir, but to a discretionary testamentary trust. This way, the heir's inheritance will be safeguarded for him and his children.
Accrual claims
For marriages in terms of the accrual system, the spouse with the smaller accrual will have a claim against the spouse with the larger accrual.
The abovementioned claims will be handled like any other claims, by or against the estate. It is critically important that you take this claim into account in planning your estate.
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If the heir refuses
Being a beneficiary under a will may not always be to your benefit – but a beneficiary does have a choice whether to accept (adiate) or reject (repudiate) an inheritance.
Why would a beneficiary want to repudiate an inheritance?
To use an example: a father bequeaths a house to his son, but subject to the condition that the son pays R500 000 to his sister. At the date of the father's death the property is not worth R500 000.
The son is now put to an election. Should he accept (adiate) he will have to pay his sister R500 000. If he repudiates he will not have to pay his sister but he will not inherit the house. By repudiating - the son will forfeit all benefits under the will – he cannot reject one benefit and accept another – unless the testator clearly intended otherwise.
In our example – where the son repudiates and no alternative provision is made for this eventuality in the will – the assets will devolve intestate.
At this point, the Intestate Succession Act comes into play, which determines how the asset is to be dealt with. In other words, the law determines what will happen to the asset.
In a nutshell the Intestate Succession Act stipulates that a spouse will inherit the greater of a child's portion or R125 000. The number of children plus one (the spouse) determines a child's portion.
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