National Wills Week: Expert answers the most common questions
Law Society of South Africa CEO Charlene Louw explains the importance of having a valid will.
More than 70% of South Africans die without a valid will, putting additional pressure on their loved ones and, in some cases, becoming a source of conflict after their death.
National Wills Week runs from 14 to 18 September. The campaign, a partnership between the Department of Justice and Constitutional Development, the Law Society of South Africa and attorneys accross the country, volunteer their time to draft a basic will for any member of the public, free of charge.
The Law Society of South Africa (LSSA), Charlene Louw answers some of the most frequently asked questions about having a will.
What is National Wills Week?
National Wills Week is the LSSA’s flagship access-to-justice campaign.
Once a year, in partnership with the Department of Justice and Constitutional Development, Legal Aid South Africa and the Master’s Office, attorneys across the country volunteer their time to draft a new basic will for any member of the public completely free of charge.
There is no income threshold for people who want to make use of the service, as it is open to any member of the public. However, the free service covers only a basic will. People with more complicated circumstances, such as assets in more than one country or a complex blended family, may require a more detailed consultation, which could carry a fee outside of Wills Week.
For most South Africans, however, Wills Week provides an opportunity to take advantage of a professional service and ensure that their wishes are documented.
Does having a free will mean there will never be any costs?
No. While the drafting of a basic will during Wills Week is free, there can still be costs associated with the administration and winding up of an estate after someone dies.
Members of the public can visit the LSSA website to find out which attorneys are offering the free service.
How do I know if the attorney or law firm is registered?
It is important to make sure that you are dealing with a properly registered legal practitioner.
Louw says every practising attorney in South Africa must be registered with the Legal Practice Council (LPC).
“If they hold money on your behalf, they must also hold a current Fidelity Fund certificate,” she explains.
Members of the public can contact the LPC’s provincial office or the LSSA to confirm that a practitioner is on the roll and holds a valid certificate.
Where should I keep my will?
Once your will has been drafted, Louw recommends keeping a copy and letting someone you trust know where it is kept.
She says it is advisable to leave the original with an attorney, as the Master of the High Court requires the original will when administering an estate.
But what happens if the law firm closes, merges with another firm or the attorney retires?
Attorneys have a professional obligation to safeguard their clients’ records, including wills, when they stop practising.
“When a firm closes or an attorney retires, arrangements must be made for files held in safe custody to be transferred either to a successor practice, another attorney, or otherwise kept safe and traceable through the Legal Practice Council,” she says.
What about free wills offered by banks?
There is not necessarily a major difference between having your will drafted through a bank and using an attorney or trust company. However, Louw says it's common for the bank or company providing the service to nominate itself as the executor of the estate.
An executor is responsible for winding up the estate, and there are fees associated with this process.
The executor’s fee can be up to the maximum allowed by law, which is currently 3.5% of the gross value of the estate’s assets, plus VAT, and 6% on income earned by the estate after death, unless the will provides for a different rate.
What should I bring when making a will?
You should take your identification document and the relevant details of the people you want to include in your will.
This includes:
- Your full name and ID number.
- The full names and ID numbers of your spouse and children.
- Details of anyone else you want to include in your will.
- Your marriage certificate, if you are married.
- Your antenuptial contract, if you signed one.
- Information about what you own, including property, vehicles, bank accounts, investments, retirement funds and business interests.
- A rough idea of the value of your assets.
If you already have a will, you should also take a copy with you. Your new will should clearly state that it revokes the previous one.
What information do I need for my beneficiaries?
You will need the full names, dates of birth and ID numbers of your beneficiaries.
For minor children, you should also have the same details for the guardian you want to appoint.
Louw explains that if you leave money directly to minor children, it will generally be paid into the Guardian’s Fund and administered by the Master until they turn 18. The guardian would then have to apply to the fund for money to be released as needed.
However, many parents choose to establish a testamentary trust in their will instead.A testamentary trust can have trustees chosen by the person making the will and can hold and manage the inheritance on behalf of the child. The inheritance can then be released according to the terms of the trust and the age specified by the person making the will, such as 18, 21 or later.
Ultimately, having a will gives you an opportunity to clearly set out what you want to happen to your assets and who should benefit from them after your death.
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