Wills are essential because death is inevitable

Without a will, what you leave behind is chaos, because you don’t leave an indication of what you want to happen to your estate, in other words, who inherits what.

Without a will, the state will take over and distribute your assets according to South African legislation governing intestate estates. This process takes a long time, and your estate might not be distributed according to your wishes.

As if the event of you passing away isn’t traumatising enough, the process of executing an intestate estate will traumatise your loved ones even more.

A will takes the extra sting out of death

When you pass away, your loved ones need time to mourn the event of your passing. Having to deal with all the paperwork of an intestate estate, the initial uncertainty of who will inherit what and the long time it will take to wind down the estate, will add additional stress on the people you love. 

A professionally drafted will is a good start to the process of winding up your estate, which has to take place when you pass away.

More than just a legal document containing your last wishes, what else should your will do?

It is like a shield defending your wishes regarding your estate against attacks in the form of court cases. It might happen that a relative or somebody else might approach the court for rights to your will and guardianship of your children. If your will was drafted by a professional and you have made provision for the above-mentioned, it will be quite difficult to go against your wishes.

• If you have minor children (18 years and younger) your will is the perfect place to indicate who you would like as guardians to take care of them if you and your spouse pass away. This helps social workers guide the court as to who you would prefer to be confirmed as guardians. In a recent case in the Cape High Court guardianship of two brothers was awarded to their testamentary guardians.
  • Their father passed away in 2018.
  • In 2021 their mother drafted a last will and testament wherein she nominated a couple from Somerset-West as the boys guardians. They established a relationship with the two sons as uncle and aunt. Their mother passed away in 2022 while in palliative care. A social worker found that the two children needed to be in care and protection. She placed them in the care of “safety parents”, the maternal uncle and aunt.
  • When the guardians, as nominated by the will, tried to take the children home after their mother’s funeral, they were prevented from doing so by the children’s maternal family. Afterwards the Children’s Court placed the two boys in the temporary safety of the maternal uncle and aunt.
  • The older of the two boys suffered a rugby injury and there were problems with the maternal “safety parents” adding the boys to their medical aid.
  • The testamentary guardians approached the High Court with an application for the boys to be given in their care.
  • The court found in the applicant’s favour, saying it would be to the benefit of the two boys and that neither the Children’s Court, nor the social worker knew of the last will and testament where the mother asked for the couple of Somerset West to be appointed guardians.
• A will is also the place to set out the conditions of your testamentary trust for your minor children. Amongst other things, you may specify who the trustees of the trust will be and at what age your children should receive their inheritance.
• A will helps to ensure fewer delays in appointing executorship authority, thereby speeding up the process of winding up your estate.
• It ensures that your family and loved ones know that your will indeed contains your last wishes and should therefore be respected.
• It prevents family feuds from erupting which could happen if there was no will.
• Valuable or sentimental heirlooms can be ringfenced for specific family members.

When you do have a will in place:

• Your assets will be distributed according to your intended wishes.
• The executor of your choice will be appointed by the High Court. This is important because if you have not expressed your choice of executor in a valid will, your surviving relatives may nominate the executor of their choice. The final decision of who the executor of your estate will be is made by the Master of the High Court. Consequently, the wrapping up of your estate may be delayed, resulting in additional costs and unnecessary frustration for your family.
• If you do not have any heirs or blood relatives who could possibly inherit, you may leave your assets in your will to a beneficiary of your choice, for example a charity. Without a will (and no blood relatives), your assets will be liquidated and paid into the Government Guardian’s Fund. If unclaimed for 30 years, the money will be forfeited to the state.

Capital Legacy has a formidable reputation in the industry as far as the winding up of estates is concerned. In just more than 10 years since inception, Capital Legacy has closed 1 500 estates, and on average this is done faster than the industry norm. 

A couple of examples of estates wound up as fast as lighting (not really, but we were very fast) 

Deceased Estate Administration is a complex and laborious process that can take anywhere from 12 to 60 months in some cases. Inheritances cannot pass to the family until the process is finalized. It, therefore, makes sense that you’d want to do everything possible to help facilitate the speedy execution of your estate for your family. Here are a couple examples of estates that we were able to execute in record time . . .

Deceased Estate Example 1

This estate had a stockbroking business, shares, and bank accounts. We accepted the estate on the 27^th of July 2018 and received the Letter of Executorship (LOE) from the Master’s Office on the 16^th of August 2018. This means the Master officially accepts Capital Legacy as the executor of an estate and that we may start with our work on winding down the estate. 

We drafted the Liquidation and Distribution Account on the 20^th of September (we can only draft the Account once we have obtained all information from the relevant institutions regarding shares, bank accounts, etc.)

On the 01^st of October 2018, the Liquidation and Distribution Account was accepted by the Master’s Office and on the 07^th of November 2018, we finalised the matter. 

Deceased Estate Example 2

What makes the speed with which this estate was done so exceptional is that we had to sell the property in the estate. 

This usually makes us take longer to wind down the estate due to the fact that we need to secure a purchaser for the property and have the Master’s Office approve the sale by way of signing a 42(2) endorsement.

We accepted the estate on the 04^th of April 2018 and received the LOE on the 17^th of April 2018. We drafted the Liquidation and Distribution Account and received the approval for it from the Master on the 16^th of July 2018. On the 14^th of September the estate was finalised. 

However

Since Covid, the floods and the riots of 2022 hit, the Master’s Offices nationwide are experiencing a huge backlog. The whole industry is also facing challenges with the banks and thus deceased estates are taking longer. 

However, Capital Legacy stays undaunted and continues to champion the process of streamlining the execution and administration of estates for our clients and continues to lead the industry in the best average time to estate closure.

Conclusion:

Having a professionally drafted will in place ensures that your last wishes are adhered to. It also speeds up the whole process of winding up your estate.

If you want to save your loved ones the chaos of passing away intestate, contact Capital Legacy to draft your last will and testament free of charge, or speak to your financial advisor.