Harshna Munglee | Attorney and Human Rights Activist | H Mung-Lee & Associates | mail me |
Having a valid will in place is one of the most important things you can do for yourself and your family.
A will can legally protect your spouse, children, and assets, as well as spell-out exactly how you would like things handled once you have passed on.
Even more so in today’s unprecedented times as COVID-19 proliferates, life has become even more unpredictable.
Consequences of not having a will
The consequence of not leaving a will once you pass on is that your estate (which consists of movable and immovable property) will devolve according to the laws of intestate, which means that a person/s who have not been elected by you will inherit your assets.
It is important that a will complies with the formalities as laid down in the Wills Act to be declared valid and executable, and for this reason, it is advisable that a will be drafted by a professional.
A will is one of the most important documents that you will ever draft in your lifetime. It is meant to reflect your intention and the future of your estate after death. It is imperative that you plan correctly to ensure that your heirs will not be disadvantaged after your death.
Drawing up a will
Once you have decided to draw-up a will, the first step is to contact an attorney. An attorney will be able to properly advise you on what they will require from you to proceed and this depends on your own situation and it is imperative that you are open and honest in terms of your personal situation and assets.
In recent years, there have been instances where people have completed will templates found on the internet.
However, these documents are not tailored for the individual and therefore one needs to understand that these templates do not make provisions for everyone’s personal circumstances.
While there are some who still choose to draft their wills by other means, other than by an attorney, one only sees the challenges in the will once the person dies.
It is quite easy to just write a will down, but only an attorney knows every implication of what’s written and everything that isn’t written and how it can affect the heir/s and the deceased’s wishes. Attorneys who specialise in this field know the outcomes and implications because they deal with the aftermath.
It is therefore essential to seek an attorney that you trust, and you are comfortable with. You must feel at ease to divulge your last wishes and to be assured that upon your death, your last will and testament would be handled with due diligence and professional execution.
Common myths by individuals with no wills
If I am married in community of property and my spouse dies, the property automatically becomes mine
Married in community of property simply means you own 50% of the property. The deceased’s share is the other 50% of the property and needs to be transferred to the surviving spouse (this is known as a S45 transfer).
Therefore, one needs to wind-up the estate and take transfer of the 50% share of the property and any other assets in the estate as well as being liable for any debts incurred by the deceased.
I don’t need to wind-up the estate after the death of one parent and can wait to wind up after the death of the survivor to take transfer
Sometimes due to financial reasons, heirs are unable to wind-up the estate immediately and upon the death of the surviving spouse the children of the deceased are left with a greater financial burden having to wind up two estates and two transfers, known as the compounded cost. It is always wise to wind-up the estate as soon as it is reasonably possible to do so.
I live with my parents, so I automatically get the house
Incorrect, if there is no will, the children who do not live with the parents as well as other family members may contest it.
In conclusion
Once your will has been drafted and finalised, it is standard practice to update the document every time there is a change in the individual’s circumstances such as divorce, death, new property, children and grandchildren among other things.
