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What is a last will and testament?

When “Googling” the definition of a last will and testament, you’ll find hundreds of results with technically appeasing answers, including “A last will and testament is a legal document outlining how an individual's assets will be distributed after their death.” You won’t easily find reference to the multitudes of families that have lived through the devastating consequences of their loved ones not having a valid will in place, and actual case examples of the devastation it caused. 

At Capital Legacy, we have drafted 600,000 wills over the last decade, gained extensive experience in the wills and estates arena and seen first-hand how family feuds and financial issues can erode legacies. Our mission is to make the loss of a loved one easier by helping more South Africans get their will in place.

In this blog, we will provide an overview of what a last will and testament is, why it is important to have one, how to create one, the consequences of not having one, and the pros and cons of using a template to create your will vs getting professional help drafting one.

What is the purpose of a will?

The purpose of a will is to ensure that an individual's wishes are respected and that their assets are distributed according to their wishes. The document typically includes information about who the executor of the will is (the person responsible for carrying out the wishes outlined in the will), who the beneficiaries are (the people or organizations who will receive the assets), and how the assets will be distributed. A will can also include information about who will be responsible for caring for any minor children and their assets, if applicable.

Why is a last will and testament Important?

There are several reasons why having a last will and testament is important. Firstly, it ensures that an individual's wishes are respected and that their assets are distributed according to their wishes. Without a will, the distribution of assets will be determined by the Intestate Succession Act, 1987 (Act 81 of 1987). This means that your estate will be divided amongst your surviving spouse, children, parents or siblings according to a set formula, that may not reflect an individual's wishes. Additionally, having a will can help to prevent family disputes and ensure that the distribution of assets is carried out smoothly.

Creating a last will and testament

Creating a will is an important process that should not be rushed. It is recommended that individuals seek the advice of a legal professional when creating a will to ensure that it is valid and legally binding. The following are some steps that individuals can take when creating a last will and testament:

Determine Your Assets: The first step in creating a will is to determine what assets you have. This includes all property, investments, and personal possessions.

Determine your beneficiaries: Once you have determined your assets, you will need to decide who your beneficiaries will be. This can include family members, friends, or organisations.

Choose an executor: You will need to choose an executor to be responsible for carrying out the wishes outlined in your will. This can be a family member or a professional executor.

Decide how your assets will be distributed: You will need to decide how your assets will be distributed among your beneficiaries. There are various ways that this can be done, including dividing the assets equally among heirs or designating specific assets to specific beneficiaries.

Consider guardianship for minor children: If you have minor children, you will need to consider who will be responsible for caring for them and their assets if you pass away and a will affords you the opportunity to guide the courts as to who you would like the guardian to be.

Sign and store your will: Once you have created your will, you will need to sign it in the presence of two witnesses. It is important to store your will in a safe place and ensure that your executor knows where it is located.

Updating your last will and testament

It is important to update your last will and testament regularly to ensure that it reflects any changes in your life circumstances or wishes. For example, if you have a new child, get married or divorced, or acquire new assets, you will need to update your will. It is recommended that individuals review their will annually to ensure that it is up to date.

What are the consequences of not having a last will and testament?

The law will determine asset distribution

As previously mentioned, if an individual does not have a valid last will and testament in place, the law will determine how their assets will be distributed. This is known as dying intestate. The laws of intestacy vary from country to country, but generally, the assets will be distributed to the individual's closest living relatives in a predetermined order. This means that the assets may not be distributed in the way the individual would have wanted.

Family disputes

When an individual dies intestate, family members may dispute the distribution of assets, leading to costly and time-consuming legal battles. This can cause unnecessary stress and tension among family members, potentially leading to irreparable damage to relationships.

Potential delay in asset distribution

Without a valid last will and testament, the distribution of assets can be delayed. The process of determining who the closest living relatives are, and how the assets should be distributed, can be a lengthy one, causing delays in the distribution of assets to beneficiaries. This can lead to financial hardship for loved ones who may have been relying on the assets.

Guardianship for minor children

If an individual has minor children the court will determine who will become the guardian of the children. This can cause stress and tension among family members who may disagree on who is best suited to care for the children. By having a last will and testament you can guide the process by stating your wishes for who the guardian should be.

You’ll have no say in end-of-life care

Your will can also outline an individual's wishes for their end-of-life care, such as whether they wish to be kept on life support. Without a valid last will and testament, loved ones may be left to make these difficult decisions on behalf of the individual, potentially causing disagreements and further emotional distress. Having a living will stating your wishes in this regard as an add-on to your will can help alleviate stressful situations when you aren’t able to speak for yourself.

You’ll have no say in funeral arrangements

An individual's last will and testament can also include their wishes for their funeral arrangements. Without a valid last will and testament, loved ones may be left to make these decisions on behalf of the individual. This can cause additional stress and tension, particularly if family members have differing opinions on how the individual would have wanted their funeral arrangements to be made.

Increased costs

The process of determining how an individual's assets should be distributed can be a costly one, particularly if family members are disputing the distribution of assets. Without a valid last will and testament, the costs of the legal process can be significantly increased.

Pros and cons of using a template to draft your last will and testament

Some people may prefer to use a free online will template to draft their own will if they feel they have a simple estate with few assets. There are will templates available in South Africa and there can be some advantages to this approach.

Cost savings

One of the biggest advantages of using a template to draft your last will and testament is cost savings. Hiring a lawyer to draft a will can be expensive, with fees ranging from a few hundred to several thousand rand. A template, on the other hand, can be purchased for a fraction of the cost or even found for free online.

Convenience

Using a template to draft your last will and testament can be a convenient option, especially for individuals who are comfortable with technology. Templates can be downloaded from the internet and filled in at the individual's own pace, without the need to schedule appointments with lawyers or leave their home.

Speed

Creating a will using a template can be a relatively quick process. With the right template, an individual can create a will in a matter of hours or even minutes. This can be especially beneficial for individuals who need to create a will quickly.

Cons of using a template to draft your last will and testament

Lack of legal advice

Using a template to draft your last will and testament means that you are not receiving legal advice from a professional. This can be a disadvantage, as an expert can provide guidance on legal requirements, tax implications, and more. Without legal advice, individuals may make mistakes that could have significant consequences.

Risk of errors and omissions

While templates can be customised to suit an individual's needs, there is always a risk of errors and omissions. Individuals may accidentally omit important details or make mistakes that render the will invalid. These mistakes can be costly, leading to family disputes and potentially requiring legal intervention.

Inadequate for complex situations

Templates may not be adequate for individuals with complex situations, such as blended families or businesses. In these cases, a professional can provide guidance on how to structure the will to meet the individual's needs. A template may not be able to cover all of the necessary details.

Lack of updates and maintenance

Once a will has been created using a template, it may be forgotten or not updated regularly. This can be problematic, as changes in personal circumstances or changes to laws may require updates to the will. Without regular updates and maintenance, the will may no longer reflect the individual's wishes or be legally valid.

Conclusion

It is important to create a will to ensure that an individual's wishes are respected and that their assets are distributed according to their wishes. When creating a will, it is recommended that individuals seek the advice of a legal professional to ensure that it is valid and legally binding. Additionally, individuals should regularly review and update their will to ensure that it continues to reflect the individual's wishes and remains legally valid.

Using a template to draft your last will and testament can be a cost-effective and convenient option. However, it is important to consider the potential drawbacks, including the lack of legal advice, risk of errors and omissions, and inadequacy for complex situations. It is important to weigh up the pros and cons and decide what option is best for your individual needs. 

The consequences of not having a valid last will and testament can have serious implications for an individual's assets and their loved ones. Government laws will determine how the assets are distributed, potentially causing family disputes, delays in the distribution of assets, and financial hardship. Guardianship for minor children, end-of-life care, and funeral arrangements may also be left to loved ones to decide, potentially causing additional stress and tension. To ensure that an individual's wishes for the distribution of their assets are respected, it is important to have a valid last will and testament in place. This can help to minimize the stress and tension that loved ones may experience after the individual has passed away.

At Capital Legacy, we offer complimentary will-drafting consultations. We have hundreds of expert consultants countrywide that will meet you in person, virtually or telephonically to help you get your last will and testament sorted! In less than an hour you can have your will professionally drafted and tailored to your needs. We go a step further and arrange a courier at no cost to you to collect your will and store it for you securely, also at no cost to you. You can have peace of mind knowing that a professional has helped you with the process and that your affairs are in order if anything happens to you.