Wills Faq

What is a Last Will and Testament? - A Last Will and Testaments is a legal document that communicates a person's final wishes pertaining to possessions and dependents. State laws recognize this document as legally enforceable and offers you great flexibility for accomplishing your wishes after your death.
What is a Testator or Testatrix? - The Testator (male) or Testatrix (female) is a person who makes or has made a testament or Will.
What does it cost to draft a Will? - LegalEtc. consults and drafts Wills free of charge. We also keep your Will in safe-custody at no cost.
Do I need a Will? - The short answer is YES. Having a Will gives you the freedom to choose your heirs and your Executor.

Whether or not a Will is wholly adequate for your estate planning needs depends on your individual circumstances. If you're unsure what you need to protect your family, consult with our team of legal experts at LegalEtc. The most important thing is that you don't neglect planning your estate. It's the best way to protect your loved ones and make sure your assets are distributed according to your wishes.
What is the purpose of a Will? - The fact that the Will distributes the Testator’s property and assets as per his wishes, part of testamentary capacity is the intent of the Testator of the Will to dispose of assets in a specific manner after his or her death.
Who may make a Will? - Any person of the age of sixteen years and above may make a Will, unless at the time of making the Will he is mentally incapable of appreciating the nature and effect of his act.
Can I draw up my own Will? - A lay person may draw up his/her own Will. However there are many legal formalities which must be complied with to ensure that the Will is valid. Where the Will has been drafted by an inexperienced person, resulting in a Will being rendered as invalid, the situation could arise where your family/heirs have to resort to a costly High Court application to rectify the Will or the interpretation thereof. There are many other issues which may need to be dealt with in a person’s Will which might not be considered unless professional advice is sought.
What if I change my mind, how easy is it to change my Will? - Revoking your Will is as easy as tearing up the original and any copies at any time prior to the Testator’s death, provided there has been compliance with certain requirements like doing a new Will instead of simply destroying your old one. This is the preferred method of revocation because it does not leave you without a Will.
What if I would like to add to or amend my Will? - If you want to make changes or additions to your Will without revoking it, you can do this with a codicil. A codicil is a legal document that adds or alters the provisions of a will. The purpose of a codicil is to enable a Testator to amend his Will. Codicils must meet the same formalities that the law requires for the preparation and execution of a Last Will and Testament. However, a situation may arise where there are too many changes to be made and in that case we may advise that a new Will be drafted.
How can I make sure my minor children are looked after financially? - If you have minor children it is essential that your Will be drafted to include the setup of a testamentary trust. A testamentary trust is a trust created in your Will wherein the inheritance of minor heirs/ beneficiaries will be managed by the trustee you designate to take charge over the trust assets and administers them according to your instructions for the benefit and wellbeing of the minors. The minor heir / beneficiary will receive his/her full inheritance at the age of majority specified by you. Your Will defines the terms and conditions on which the trust will operate and the powers which the trustees will enjoy and only comes into existence on your death.
Can a testamentary trust be used for purposes other than minor heirs? - Yes. A testamentary trust is a good tool to use to protect the inheritance of beneficiaries, including those who are not able to manage their own affairs. Examples where a testamentary trust can be used include beneficiaries who might be likely to squander their inheritance, a surviving spouse, caring for pets, or caring for mentally incapacitated individuals. The appointed trustees administer the trust in terms of the Will until the trust terminates, usually after a predetermined period or at a determined event such as the death of the beneficiary.

The trustee will be the person/s you appoint as trustee/s in your Will. Similar to an Executor, this person should be a trusted professional with the expertise to take responsibility for managing money or assets that have been set aside in a trust for the benefit of your beneficiaries. The money or assets in the trust must be used for the beneficiary's benefit only.
Who may not benefit under my Will? - A beneficiary may be precluded from taking a benefit under a will on the ground that his conduct towards the Testator is such that he is considered unworthy, in a legal sense, to take any benefit. Thus a murderer cannot take a benefit under the Will of the person he murders.

It is not possible to leave something to an animal directly. If a Testator wishes to make provision for the care of his pet horse, dog or cat, he must establish a trust for that purpose.
Can I have one Will for both South African and foreign assets? - You may have one Will that deals with your worldwide assets, known as the universal Will. However, succession law and the procedures which have to be followed with regard to estate administration differ from country to country and it is, therefore, recommended that a person has a separate Will drawn up by an expert in the relevant law of each country where he/she has assets.
What happens if a person dies without leaving a Last Will and Testament? - Intestacy is the condition of the estate of a person who dies without having made a Will. Intestacy laws do not offer you the control over the distribution of your assets as you would have with a Last Will and Testament. The estate is administered in terms of the Intestate Succession Act 81 of 1987, which specifies how your estate must be distributed.

As a general rule, intestacy laws favour your spouse and your children by giving them your entire estate. If you do not have a spouse or children, then your estate would be distributed to your parents or, if neither of them are alive, to your brothers and sisters. Alternatively, the Act provides for distribution of estates to other relatives if there is no surviving spouse, children, parents or siblings.

Since you may not even know these relatives, it is important to sign a Will wherein which you can bequeath your assets to whoever you wish.
How frequently should a Last Will and Testament be updated? - The good news is that a Last Will and Testament does not expire. However, most people put their Wills away and forget about them without considering that certain events such as divorce, marriage, the birth of children, etc. should be catered for in their Wills. It is a good idea to go over your Will annually, regardless of the events in your life, to identify anything you might want to add or change.

WILLS FAQs...

WILLS FAQs
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