If you own assets and/or have dependents, a last will and testament is a must.
It will help transfer your property to those you choose efficiently, and on sensible terms tailored to your specific circumstances.Who is involved in one’s will, and precisely what role they play, is often poorly understood. Let’s break down the major parties in a last will and testament and what role each plays.
Testator – This is you, the person making the will. The will sets out your wishes as to what happens to your property after your death. You enjoy freedom to make, amend, destroy and replace your will freely (subject to certain rules as to form).
Executor – This is the person you appoint to implement your will. They can be a professional executor (such as an attorney) or a layperson (such as a spouse, child, other relative or friend). A common misconception is that your executor cannot inherit under your will. Your executor can also be an heir under your will. The role is important and requires the utmost trust and good faith.
The executor’s many tasks include: identifying, gathering, reporting and safeguarding assets; liaising with debtors and creditors; settling and pursuing claims; operating a bank account; advertising at different points in the process; correctly distributing assets; and liaising with the Master of the High Court throughout. Where the estate (your property) has a gross value of R250 000 or more, the Master will require an attorney to wind up the estate, and a layperson executor must appoint one as their agent. The executor is entitled to payment equal to 3,5% of the gross asset value.
Heir – This is someone who stands to inherit from your estate – either through your valid will or in terms of the rules that apply where you don’t have one (intestate succession law). The term beneficiary is usually reserved for an heir who stands to inherit in terms of a will. You can nominate any individual or legal person (eg company, trust or NGO) as your beneficiary. It is important to describe your beneficiaries clearly, preferably using full names and identity numbers, and naming your relationship to them. This is especially important when an heir has a common name, and where your family uses the same first and middle names across generations. You can leave a specific asset to a beneficiary or make them your residual heir, receiving all that is left after any specific assets.
Drafter – This is ideally an experienced professional, specialising in wills and estates. In preparing your will, they will ask probing questions about aspects you have probably not considered, and guide you away from common pitfalls that can have dire consequences. They will prepare a succinct and unambiguous document and ensure that it is signed in accordance with all prescribed formalities.
Master of the High Court – This is an office within the Department of Justice that is responsible for receiving the original last will and testament after a death, determining its validity on face value, formally appointing the executor, and overseeing the entire process of winding up an estate. They will receive reports from the executor and grant permissions at various stages in the process. They will charge the estate a fee between R600 and R7000 depending on the gross asset value.
In our next post: Who else may be involved in your will if you have minor children or other dependents needing care? Trustees, guardians and the Guardian’s Fund.
Later: Ensuring a valid will – how to get the prescribed formalities right and avoid common but costly mistakes