Does your family structure impact the way you draft your will?

It is important to have a valid, signed will so that your final wishes are known and your family is fairly provided for. There is a mistaken belief that wills are only necessary for people with a lot of assets. Partially due to this mistaken belief, many Namibians don’t have a will. Many see it as a complex and expensive process, but it does not have to be! It is also vital to keep your will up to date, adapting it whenever there is a major life event, such as marriage, divorce, the birth of a child or the death of a beneficiary – or a change in financial circumstances.

The basics of drafting a will

A valid will needs to be in writing and signed in front of and by two competent witnesses who do not stand to inherit from the estate. ?Given that wills are subject to various legal requirements, it is important to work with a professional such as a lawyer, wills consultant or financial adviser to ensure your will is valid and fit for purpose.

Death may have an expensive price tag

Sanlam Trust found that over 40% of the estates it administers have insufficient cash to cover all debts, costs, cash bequests and taxes owed by the estate. This may have serious consequences for loved ones left behind. A very cost-efficient way to eliminate such cash shortfalls in an estate, is to take out a suitable life insurance policy from Sanlam Namibia Limited that is payable to the estate.

Nuances to consider when drafting a will

Blended families:

An increasing number of people belong to this group and should thus consider the following:

-?Divorce settlement: Often, partners come from previous relationships that ended in divorce. It is important to know what is in the divorce settlement(s) and how that affects a new marriage.

-?Marital regime: Are you married in or out of community of property? If out of community, including the accrual system in your antenuptial contract or not? Who owns which assets?

-?Beneficiaries: Stepchildren do not stand to inherit unless you expressly stipulate as such or adopt them as your children. You need to be explicit with your wording to eliminate any confusion. If your stepchildren are excluded from your estate but can prove they were financially dependent on you, they can claim from your pension fund.

Adopted children:

- Adopted children have the same rights as biological children. Should you die without a will, they will be regarded as your children in the intestate process.

Divorce:

- If you have a joint will, or a will that nominates your ex-spouse to inherit, she/he will inherit if you do not amend your will after the divorce.

A very special pet:

Many people do not have children, but they do have fur kids. Leaving everything to a beloved pet is complicated. If you want to make provision for a pet you need to consider the following:

-?Who will look after your pet? Are they going to take in your pet as its ‘guardian’? Or is the expectation that the person will move into your home to care for your pet? If so, have you left sufficient funds for rates, taxes and the upkeep of the family in your estate? Will the guardian inherit your house (as you cannot leave this to your pet) or will the property go into a trust? You need to be clear in your will and financially provide for this, for the duration of your pet’s life.

Married couples:

-??It is advisable to have separate wills to ensure each spouse’s final wishes are carried out.

-??????? Your marital regime plays a major role. For example, if you’re married out of community of property excluding the accrual system, you can exercise freedom of testation and leave everything to your children, subject to any valid claims against your estate. If you are married out of community of property with the accrual system, the surviving spouse’s accrual claim enjoys preference and you can only deal in your will with what is left in the estate after settlement of such an accrual claim.

Unmarried with a life partner:

-?Strictly speaking, in Namibia life partners enjoy no legal protection and will not inherit intestate from their life partner. It is, however, possible for a life partner to be an heir in your will, so it’s much kinder and fairer to include a partner in your planning.

-?According to a Sanlam Trust survey done in South-Africa, 18% of respondents were living with a partner and 10% had children with their unmarried partner. The statistics in Namibia are likely very similar. It is important to plan together and make sure each partner is provided for. You can nominate your partner as the main beneficiary, or make your children your beneficiaries and plan for your partner elsewhere, through life cover, for example.

Providing for parents and other extended family members:

-?If you die without a will, your parents, siblings and other family members have no maintenance claim from your estate. However, if they can prove their financial dependence on you, they are entitled to claim from your pension fund.

-?Rather be explicit and stipulate in your will whether you want to continue supporting family members (in addition to your children and spouse).

A will is the best way to ensure your final wishes are known and your loved ones are fairly provided for. Work with a financial adviser, wills consultant or lawyer to plan your estate holistically and comprehensively, so you can live confidently knowing that your affairs will be properly managed, and your beneficiaries taken care of.

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Issued by Sanlam Group Marketing and Communications Department