In our previous blog, we asked the question how do I know if my will is valid? Another immensely popular question we receive regularly is what happens if I do not have a valid will or I pass without a valid will which ties into our previous blog.
When one considers the process, you as the client will only be affected once your estate has to be wound up, and then your family will bear the brunt for the lack of action and/or conduct to secure the financial safety of your family, loved ones and heirs.
To understand this comment, lets explain that after a person passes away a process and procedure must be followed in order to dispose of assets lawfully and transfer those assets to the relevant heirs as set in terms of the laws of South Africa.
In this blog we will be discussing events or situations as to how your estate and heirs will be affected if you pass without a valid will. Resulting in your estate dissolving on an intestate basis (without a will). Here 5 events and/or situations that will affect your estate and heirs when passing away without a valid will and passing intestate.
Before we deal with the 5 consequences, what does it mean to pass and leave behind an estate that is administered intestate (without a will).
When you pass away without leaving a valid will, the law of South Africa dictates in terms of the Intestate Succession Act 6, as amended by the Reform of Customary Law of Succession Act 7 and supplemented by case law, about rules as to how your estate must dissolve. This however for a later blog.
We now turn to the 5 events and/or situations when you fail to leave a will and how this will affect your estate and heirs:
1. Lose ability to plan:
Very often when one draws a will the testator/testatrix (person who draws the will) has the ability to foresee the future in a manner of speaking. At least this will form part of the exercise or at least an attempt is made to predict the future. This does not afford the client an ability to foretell the future, but more an ability to secure the wellbeing of his/her family and the heirs he/she would like to benefit by setting out a set of directives by which this must happen.
A well-drawn will should not be seen as a once off exercise, but rather an ongoing exercise with your financial planner, accountant and/or attorney to ensure the best tax and related benefits are achieved for your heirs.
What we are often confronted with is the lack of basic planning where a will was drawn and which are some of the elements we will touch on in this blog.
However, an ability to plan your will is the first and most important start to prevent the consequence set out herein.
2. Can be costly:
By not having a will, a situation could exist where there are unresolved issues in the estate. This could be anything from warring family members, unsolicited involvement from family or friends who were never even considered who know arrive as the proverbial knight in shining armour and who may have disingenuous intentions.
A well-drawn will could circumvent this consequence and concern, although a court battel is never excluded.
A further cost saving consideration is that the client can negotiate a fee as to the administration side of things.
A lack of a well-planned will could require and cause costly systems and possibly even costly litigation which could diminish the estate of hard acquired assets.
3. Can have delays:
A typical delay is where the family approach the Master and request to report the estate. The Master often, especially where the estate is complicated or have a fixed property, the Master will request the family to request the assistance of either an attorney or auditor in winding up the estate.
In any given situation an application to the Master to report the estate and obtain a letter of executorship (pre-Covid 19) could take anything up to 3 months. Now with the objection from the Master the family could be expected to wait for a response and further delays can be seen for sometimes up to an additional three months and possibly longer.
In reaching a resolution over difficult issues in the estate, the heirs may have a different view as to how the estate should be dissolved. This could invariable lead to litigation, delays and depletion of the estate assets to legal costs.
4. Control could in circumstances be given to people you do not know:
The will of a person is seen as a very personal document and the people the testator/testatrix had entrusted their hard-earned assets to are often the people closest to that person.
We often see in situations where there is no will that the family will request that: but this was the wishes of the executor/executrix. As mentioned before, to repair these mistakes or lack of action can become costly.
Also, the executrix/executor often shares his inner thoughts and ideas with such a person to ensure that the executor/executrix’s vision is fulfilled.
Where there is no will, this vision cannot be achieved easily and/or cost effectively, if at all.
5. Fail to control inheritance:
We often hear the old adage to: rule from the grave.
This comment is so important and applicable when it come to heirs who are minor children.
Apart from having to allow minors to deal with often substantial sums of capital and the practical implication with such arrangements, the importance of having effective and working structures out ways any comment.
The general rule is that where a minor is an heir, their inheritance should be protected by placing such funds in the Guardians Fund for administration by the Master until, they reach the age of majority.
This process requires the remaining guardians to approach the Master for financial assistance in the future.
This process has its own concerns and ultimate delays.
To even consider a will without such protection measures for minors is catastrophic thought on its own. (More on this in a further blog.)
Finally, your estate cannot afford to not have a will in place.
At Carter Smith Attorneys, we pride ourselves in the professional level of service and care when drafting wills. For assistance in drafting a will or in need of professional advice, please click here.
