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Wills FAQ’s

More about a valid will

  • A Will is the only way a person can ensure that his/her estate will be divided according to their wishes after death.
  • If there is not a valid Will at the time of death, the estate will be inherited according to intestate rules. These rules can be both impractical and inflexible.
  • Will at the time of death, the estate will be inherited according to intestate rules. These rules can be both impractical and inflexible.
  • With intestate succession, the incorrect people may inherit.
  • If there is no Will and the value of the estate is more than R 200 000, the Master of the High Court will convene a meeting of family members in order to appoint an executor. This causes a delay and is a costly and time-consuming process. The estate will be frozen whilst it is being wound up.
  • The Master may also require the executor to provide security. This will usually take the form of a security bond from a short-term insurance company for the value of the assets reflected in the preliminary inventory.
  • A person still in distress over the death of a loved one is faced with many requirements from the Master and often has no idea where to start. If there is a Will, the instructions of the testator will be followed, and the appointed executor will assist the family.
  • Unpleasant situations of heirs squabbling over assets could easily arise if there is no Will.
  • Where a person leaves no Will and has minor children, their inheritance must be paid to the Guardian’s Fund until the child reaches majority. Not only may the rate of return on the assets be low, but other administrative and practical difficulties may arise.
  • The Will can be used as a tax-planning tool.
  • For example, the deceased’s estate duty position can be reduced by means of bequests in the Will to a surviving spouse or charity, as well as the optimum use of the R 3 500 000 estate duty abatement.
  • Should one wish to become an organ donor: The Organ Donor Foundation website www.odf.org.za provides information about becoming an organ donor.
The person who draws up a will is called the testator/testatrix. All persons 16 years and older are competent to make a will in order to determine how their estate should devolve upon their death, unless they were mentally incapable of appreciating the consequence of their actions at the time of making the will.
All persons of 14 years and over are competent to act as a witness to a will, provided that at the time they witnessed the will they were not incompetent to give evidence in a court of law.
Since 1 January 1954 all wills must be in writing. They can be written by hand, typed or printed. The signature of the testator/testatrix must appear at the end of the will. This signature must be made in the presence of two or more competent witnesses. The witnesses must attest and sign the will in the presence of the testator/testatrix and of each other. If the will consists of more than one page, each page other than the page on which it ends must be signed anywhere on the page by the testator/ testatrix. Although the testator/testatrix must sign all the pages of the will, only the last page of the will needs to be signed by the witnesses.
If the testator/testatrix cannot sign his/her name, he/she may ask someone to sign the will on his/her behalf or he/she can sign the will by making a mark (a thumbprint or a cross). When the will is signed by someone on behalf of the testator/testatrix or by making a mark, a Commissioner of Oaths must certify that he/she has satisfied him/herself as to the identity of the testator/testatrix and that the will so signed is the will of the testator/testatrix. The Commissioner of Oaths must sign his/her certificate and he/she must also sign every other page of the will, anywhere on the page. The Commissioner of Oaths must also be present when the will is signed and must append his/her certificate as soon as possible after the will is signed even if the testator/testatrix dies soon after signing the will.
A codicil is a schedule or annexure to an existing will, which is made to supplement or amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.
Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and, if a testator/testatrix cannot sign it, with the same requirements that apply for persons who cannot sign a will. When amending a will, the same witnesses who signed the original will need not sign it again.
A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you, however, fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.
The following people are disqualified from inheriting under a will: a person or his/her spouse who writes a will or any part thereof on behalf of the testator; and a person or his/her spouse who signs the will on instruction of the testator or as a witness. Consult Jan L Jordaan Inc for more information in this regard.

Will Glossary

A person’s assets and liabilities
A person appointed to administer and wind-up an estate on death of another
All that is left of an estate after all debts, taxes, legacies and bequests have been paid
A person who looks after the interests of people, such as children, who cannot look after their own affairs
A male / female person who makes a Will
Land and the fixed structures built on it
An agreement in terms of which property is held for one or more beneficiaries by a Trustee or Trustees
A person who holds property and looks after it on behalf of someone else
A method for calculating the division of assets on death or divorce
A person’s children, grandchildren and all other lineal descendants
Something owned such as property, a vehicle or money in the bank
A person who benefits in terms of a Will or from a Trust
The Court’s representative who oversees the administration of deceased estates, trusts, insolvent estates and the care of Minors
To give something by Will to another
A person under the age of 18 who has not achieved majority through marriage or a court order
An alteration to an existing Will which must be signed in the same manner as a Will is signed
A stipulation that, should a beneficiary predecease the testator, the beneficiary’s share of the inheritance will go to his or her heirs
The legal obligation of an heir to bring into an estate any benefits received from a Testator/Testatrix during their lifetime
A marital property system in terms of which spouses share their assets and liabilities equally
The power granted to an Executor or Trustee to nominate other persons to be appointed as co-Executor or co-Trustee to assist them
Where a nominated heir dies per stirpes before the Testator/ Testatrix and the deceased heir’s issue inherit the deceased heir’s inheritance in equal shares
A person’s children, grandchildren and all others descending from that person

Estates FAQ

A deceased estate comes into existence when a person dies and leaves a document, which is a will or is intended as a will. Such an estate must then be administered and distributed in terms of the deceased’s will or, in the absence of a valid will, in terms of the Intestate Succession Act,1989 (Act 81 of 1989). The procedure that must be followed to administer a deceased estate is prescribed by the Administration of Estates Act, 1965 (Act 66 of 1965), as amended.
The estate must be reported to the master of the High Court in whose area of jurisdiction the deceased was living at the time of his/her death.
The estate of a deceased person must be reported to the Master of the High Court within 14 days of the date of death. The estate is normally reported by the nominated Executor or his agent (i.e. Jan L Jordaan Inc Attorneys). The estate is reported by lodging a completed death notice and other supporting documents with the Master which may be obtained from any Office of the Master of the High Court or on www.justice.gov.za, or contact NGL Attorneys and we will gladly assist you
The reporting documents will differ slightly depending on the value of the estate and the type of appointment required. If the value of the estate exceeds R250 000, letters of executorship must be issued and the full process prescribed by the Administration of Estates Act must be followed. However, if the value of the estate is less than R250 000, the Master of the High Court may dispense with letters of executorship and issue letters of authority in terms of Section 18(3) of the Administration of Estates Act, (Act 66 of 1965).
The following reporting documents are required: 
  • Completed death notice (form J294)
  • Original or certified copy of the death certificate
  • Original or certified copy of a marriage certificate (if applicable)
  • All original wills and codicils or documents intended as such (if any)
  • Next-of-kin affidavit if the deceased did not leave a valid will (form J192)
  • Completed inventory form (form J243)
  • Nominations by the heirs for the appointment of an executor in the case of an intestate estate, or where no executor has been nominated in the wiill, or the nominated executor has died or declines the appointment.
  • Completed acceptance of trust as executor forms in duplicate by the person(s) nominated as executor(s) (form J190) plus a certified copy of the photo page of the executor's ID document. An undertaking and bond of security, unless the nominated executor has been exempted from providing security in the will, or is the parent, spouse or child of the deceased (form J262)
  • Affidavit by the next-of-kin of a deceased person who has died without leaving a valid will, to the effect that the estate has not already been reported to another Master or service point (if applicable)
  • Declaration of subsisting marriages
If you die without leaving a valid will, your estate will devolve in terms of the rules of intestate succession, as stipulated in the provisions of the Intestate Succession Act, 1987 (Act 81 of 1987). For more information on the Intestate Succession Act, please read below. In the event of intestate succession, what happens if the deceased is survived by a spouse or spouses but not by (a) descendant/s? The spouse or spouses will be the sole intestate heirs.
The estate will be divided between the spouse and the descendants in equal shares provided that the spouse inherits a minimum of R250 000, known as a child's share. 
Example of the child’s share in the event of a monogamous marriage: In this case the value of the intestate estate is R1 000 000 The deceased is survived by his spouse and two children. In this case, the spouse and both children will inherit R333 000 each.
The intestate estate will be split into equal parts. One half of the estate is then divided among the descendants related to the deceased through the predeceased mother and the other half among the descendants related to the deceased through the predeceased father.
Only in this instance will the proceeds of the estate devolve on the state.
An illegitimate child can inherit from both blood relations, the same as a legitimate child.
An adopted child will be deemed to be a descendant of his adoptive parent or parents; and not to be a descendant of his natural parent or parents, except in the case of a natural parent who is also the adoptive parent of that child or was, at the time of the adoption, married to the adoptive parent of the child.
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