Where There’s a Will There’s a Way

Death is certain and brings enough grief without the extra problems your family will face if you die without a Will or if your Will is invalid or inadequate. If it’s the last thing you do, ensure that you have drawn the one legal document that will have the biggest affect on the lives of your family once you’re gone.

This article focuses on the value and importance of a Will. Paul Flude is a practising Attorney of the High Court of South Africa, based in London as Head of Private Client at A City Law Firm. He is a specialist in SA-UK Wills, Trusts, Estate Planning and the winding up of Deceased Estates (Probate) in global jurisdictions.

INSIGHT 1

Write a Will — it is the most important document you will ever make

Some wag once remarked: “Where there’s a Will, there’s a relative”. In my experience of drawing many Wills and winding up many Deceased Estates over the years, I have come to the conclusion that your Will is without a doubt the most important document of your life. Ponder this: all other documents can be revised, cancelled, amended and interpreted by the author, but on death the Will is final.

Most people associate the drawing of their Will with death and regard it as a morbid chore. I have been faced with situations where people delay making their Will to literally the last few hours of their life or when they are about to embark on a journey or are preparing for an operation. This is not recommended. If you die without a valid Will or if the Will was poorly drafted in haste or signed incorrectly, you will die intestate.

A well-drawn Will, together with expert legal and estate planning advice, facilitates the smooth and efficient liquidation of your Estate and gives you and your family peace of mind, ensuring that your wishes are respected. A well-drawn Will ensures that your Estate will be distributed quickly to your heirs on your death and means that a host of practical problems are dealt with in advance. Dying without a Will always leaves complications for your family. Failing to make a Will is selfish; it leaves your family with a financial and personal mess to clear up, it could severely prejudice your business or property interests and even worse, it could have a detrimental effect on your minor children.

INSIGHT 2

Get a professional to draw your Will — it’s not too expensive

You may write your own Will or get one from the stationers, but it makes sense to get it drawn up by a professional who is able to reflect your wishes in a clear and unambiguous manner in a legal format. Completing a stationers’ pre-printed form incorrectly may have disastrous consequences and the Will may be invalid and unenforceable.

A professional will give you advice on how to deal with your business and property interests and on succession planning. A professional will advise you how to order your affairs to minimize Inheritance Tax (Estate Duty in South Africa) and other taxes, such as Capital Gains Tax and also give you advice about creating a Trust in your Will or utilizing an existing Trust as part of your Estate Plan. If you are still “resident” in South Africa (that is, not formally emigrated) you will be liable for Estate Duty on all assets, including foreign held assets.

A professionally planned Will (or having more than one Will to cover multiple jurisdictions) can avoid potential problems, add significant value to your Estate and provide more cash and assets for your heirs.

Since a Will is a legal document, the best professional to assist you is an attorney or solicitor, preferably one who is a specialist in Wills, Probate and Estate Planning. It need not be too expensive; most solicitors charge a reasonable (nominal) fee for drafting a straightforward Will. A higher fee may be charged where complex Tax and Estate Planning is required, but the savings may be vast and far outweigh the time-based professional fee.

INSIGHT 3

Make provision for an Executor and Legal Guardian and if you appoint a professional Executor, discuss the fee (and if possible agree a fixed fee)

A Will must provide for the appointment of an Executor (the responsible person who carries out your wishes in your Will) and a Guardian (for your minor children). If you do not make a Will, there will not only be a delay in the appointment of these people, but these positions may even be filled by a person nominated by the Court, incurring potentially expensive legal costs in the process. The UK authorities may not recognize the Guardians nominated in a South African Will; therefore a separate UK Will is recommended.

It takes time to administer an Estate and it is often fraught with difficulties. You can often be placed in a conflict situation with heirs (who may be your family). Acting as an Executor should not be taken lightly. An Executor is personally liable for their actions and often control assets of significant value.

You must ensure that the person named as Executor can be trusted implicitly (remember, you will be dead and they will have access to all your assets, so this point cannot be overstressed). It makes sense to appoint a professional person to administer the Estate and act as Executor. The best partnership is a spouse/civil partner with a professional as co-Executor. This also saves costs. There are some solicitors who are willing to work on a fixed fee basis for Probate work.

“Make a will, take control of your life and don’t take chances with the future of those you love the most”. 

For more information about Wills, Trusts, Deceased Estates, Estate Planning & Relocations for global South Africans, contact Paul Flude at paul@paulflude.com or telephone 075 5790 1355.