The disadvantages of dying without a Will
“Shun death, is my advice” said Robert Browning, the famous poet and playwright.
It’s not so easy when you have increased VAT and Enterprise polonies on every street corner. The Grim Reaper can arrive when we least expect it, so it’s best to be (slightly) prepared. The one thing we can all do is make sure we have a valid and updated will – and a Living Will (which is an advance directive to a patient’s medical professionals to refuse any medical treatment and attention in the form of being kept alive by artificial means when the patient may no longer be able to competently express a view) - in place to protect our loved ones.
If you die without a Will you leave your intended beneficiaries to deal with the inflexible provisions of the Intestate Succession Act, Act 81 of 1987.
A brief summary of the abovementioned Act’s provisions are as follows: if the person who dies intestate is survived by a spouse, but not a child/children, the spouse will inherit the estate. If the deceased had a spouse and children, the spouse will be entitled to R250 000 or a child’s share, whichever is the greater, and the children will inherit the balance of the estate in equal shares. If there is no spouse, the children will share the estate equally. [There are other rules regarding surviving parents and other blood relations which I am not going to touch on in this article].
There are various disadvantages in dying without a will:
1.You don’t get to leave what you want to the people you want to inherit -you may not want (all or some of)your intestate heirs to inherit;
2.Descendants who have already received certain benefits from the deceased before his/her death may be unfairly advantaged;
3.You don’t get to make individual bequests of a particular asset to third parties;
4.You cannot elect an executor to wind up your estate (and obviously don’t get to negotiate rates of remuneration with your executor – to the prejudice of your beneficiaries);
5.You can’t protect minor beneficiaries or beneficiaries who are incapable of managing their affairs by the formation of a testamentary trust – a minor’s inheritance will be held by the Guardian’s Fund until he/she turns 18;
6.You can’t nominate a guardian for your minor children in the event of you and your spouse dying simultaneously;
7.The estate may be delayed if there is any conflict between beneficiaries regarding the appointment of an executor;
8.You don’t get to make decisions like whether to be cremated or not, and whom to leave your animals to;
9.You don’t get to leave a “Letter of Wishes”, or if you do, the Letter of Wishes will not be recognised by the Master and/or the Executor if it doesn’t comply with the provisions of the Wills Act, Act 7 of 1953;
10.You can’t make use of the rollover estate duty provisions in the Estate Duty Act, when intending to benefit your spouse (the first-dying spouse can leave assets to the other free of estate duty, and the second-dying spouse can make use of any unused portion of the estate duty exemption of the first-dying spouse to offset any estate duty that his or her estate may attract);
11.Your surviving spouse may not be adequately protected.
A surviving spouse is entitled to lay a claim in terms of the Maintenance of Surviving Spouses Act, Act 27 of 1990, against the estate of the deceased spouse for his or her “reasonable maintenance needs” until his or her death or remarriage. This claim has the same status as a claim for maintenance for a dependent child of the deceased.
When determining “reasonable maintenance needs”, the Act states that the following factors should be considered:
* The amount in the estate that is available for distribution to the heirs and legatees;
* The existing and expected means, earning capacity, financial needs and obligations of the survivor, and how long the marriage lasted; and
* The standard of living of the survivor during the marriage and his or her age when the deceased died.
My point regarding updated Wills is also important – your circumstances change all the time (some of these circumstances may be the birth of a child/children or divorce). Section 2B of the Wills Act states that where a testator dies within three months of his/her divorce then any Will that he/ she executed before the divorce will be interpreted as if the former spouse had died before the divorce. It follows further that if the testator dies more than three months after the divorce without changing the Will, he/she intended the former spouse to benefit.
Note that the disadvantages listed above are not a comprehensive list, and that a testator’s Will is individual to himself/herself.
I would strongly advise updating your Will and Living Will as soon as possible.
I am available on 083 2515451 or [email protected].