Will Explained

Leaving property or assets to heirs without a will can lead to conflict among heirs of the deceased estate; however, using a will can help to settle disputes among heirs and it is one of the best tools for passing on possessions to the rightful heirs.

Want to write a will or learn more about how a will work? continue reading before you begin writing your own will so that you can learn more about wills and how they work.

What is a Will?

A will is a legal document that expresses the testator’s wishes regarding the distribution of their assets after the testator’s death. It specifies the distribution of assets such as real estate, automobiles, and other items, but it also specifies how the testator’s affairs will be managed, such as who will be the legal guardian of the testator’s children or how the testator wishes to be buried. As a result, a will assist the beneficiaries in dividing assets and carrying out the testator’s final wishes.

Characteristics of a Will

• A will is a legal document that specifies how the testator’s affairs should be handled after death.
• It addresses issues such as property distribution, child guardianship, funeral arrangements, and other issues related to the possessions and the affairs of the testator.
• It is one of the most effective means of transferring property to the rightful heirs.
• It can be written in a variety of styles.
• You should include witnesses to strengthen its validity

How does a Will work?

If you die without a will, your assets and possessions will be distributed in accordance with the law of succession. To avoid this scenario, an estate planning tool such as a will may be required to distribute your possessions according to your wishes.

A will requires at least three parties, which are as follows:

The person who makes the will is known as the testator.

An Executor is a person or company who ensures that the testator’s wishes are carried out in accordance with his or her will.

Beneficiaries: These are the people to whom the testator’s assets will be distributed.

When a testator dies, he or she expresses his or her wishes regarding how his or her belongings should be distributed to the beneficiaries in terms of a will. A testator names the beneficiaries of his or her estate as well as the executor of his or her will.

The use of witnesses helps to ensure the validity of the will, and the witnesses should not be anyone with a financial interest in the testator’s estate. After stating his wishes, the testator will sign the will, and the witness will also sign the will.

When the testator dies, the executor will carry out the will, and the testator’s assets will be divided among the heirs to the estate. 

Types of Wills

1. Testamentary Trust Will

A testamentary trust will is a type of will that places a specific set of assets in trust for the benefit of the beneficiaries. The testator names the beneficiaries who will benefit from the assets placed in a trust, as well as the trustee who will oversee the trust’s administration.

A testamentary trust will is most useful to a testator who has few beneficiaries or who believes that the assets to be inherited should be handled by someone other than the beneficiaries.

In South Africa, a testamentary trust can be established under the Trust Property Control Act No. 57 of 1988. A testamentary trust will enables the testator to impose conditions on the inheritance of the trust’s assets.

2. Simple Will

A simple will is a legal document that specifies who will inherit the testator’s possessions when he or she dies. This is the most common type of will, and it is what most people think of when they think of a will. If the nature of the assets is relatively simple, a simple will should be used.

A simple will should be typed rather than handwritten. The testator’s name, address, marital status, and instructions on how the testator’s belongings will be distributed to beneficiaries are all elements of a simple will.

3. Joint Will

A joint will is a legal document signed by two or more people as each testator’s separate will. This type of will is used by spouses to prevent one spouse from inheriting everything. The terms of a joint will cannot be changed after one of the testators dies; thus, the beneficiaries, executors, and other provisions remain unchanged.

Because a joint will cannot be revoked once one of the testators dies, it creates a problem for the living testator if their wishes change over time. A joint will follows the same format as a simple will.

4. Living Will

A living will is a legal document intended to be used while the testator is still alive to provide guidance on medical treatment and life-saving measures that the testator wishes to be used if they are unable to communicate their wishes.

In order for your living will to be valid in South Africa, you must be over the age of 18. Furthermore, a living will is a separate document that serves a distinct purpose from the first three types of Wills. 

Advantages

• Instead of assets being distributed according to the law of succession, assets can be left to the beneficiaries that the testator wishes to transfer to.
• The will can name a guardian for the testator’s children and provide for them.
• An executor can be appointed to ensure that the testator’s wishes are carried out.
• A will can be amended over time to reflect the testator’s wishes.
• It is simple and inexpensive to create a will, and major banks and financial institutions will assist you for free.

Disadvantages

• When a will is probated, it becomes a public record.
• Because it is not articulately planned like an estate plan, a will does not fully address tax concerns. Estate duty issues may leave beneficiaries with assets worth less than the total assets left by the testator.
• A will can be challenged, and as a result, a will may need to go through probate.

Conclusion

A will is one of the best ways to plan one’s estate and leave your belongings to the rightful beneficiaries according to your wishes. However, because a will can be challenged, it may not work for everyone, and tax issues are not primarily addressed in a will. Using a will in conjunction with other estate planning tools can address a variety of issues that your estate may undergo in the event of your death.