Can you draw up your own will? The quick answer is – it depends. Mainly on how complicated your affairs are. We take a look at the ins and outs of drawing up your will yourself and when you need an expert.
What is a valid will?
Your will is a document that states what you want to happen when you pass on. It includes how your estate will be dealt with (who gets your money), how your dependants will be cared for and by who, and in some cases details for your funeral or memorial service, burial or cremation.
Anyone over the age of 16 can make a will.
A will is a legal document, so it needs to be drawn up in a certain way to be valid.
A will must be
- In writing.
- Signed by the person drawing up the will. Each page must be initialled, and the final page signed in full.
- Witnessed by two witnesses. Each page must be initialled, and the final page signed in full. Witnesses should not be beneficiaries or executors.
These are the basics. There are a few more things required for a valid will, your will must:
A will speaks for you when you are no longer around so you need to be very specific because no one can ask you what you meant. Some examples are naming your children instead of saying my three children and naming in detail your assets such as property situated at 10 10th avenue, (suburb), Gauteng rather than my house.
You cannot ask your heirs to do anything illegal or commit a crime.
Revoke previous wills
If you have drawn up previous wills you must revoke them and say so in your will. It is important to date your will.
Top tip: Remember to update your will if you move, acquire property, marry, divorce or have a child.
Name an executor
An executor is the person, persons or organization who make sure your wishes detailed in your will are followed. The executor will contact all your beneficiaries, sell or distribute your assets and settle any debts you have from your estate. They will also deal with any tax matters such as paying any estate duty to SARS. Executors are paid a once-off fee for their services, which can be up to 3.5% of the estate’s assets, and sometimes a monthly management fee for their services. Both these charges are deducted from the income or assets of the estate.
An executor can be someone you know and trust, or you can appoint your attorney, your financial advisor if they offer the service or a financial institution such as a bank. If an executor is a beneficiary, such as your partner, spouse or child, you should name another executor who is not a beneficiary. This is so that there is an independent party to make sure the executor who is a beneficiary acts in the best interests of all the beneficiaries and not just themselves.
It sounds complicated – can I do it myself?
Although wills can sound quite complicated – they don’t have to be. There is no reason why you can’t draw up a will yourself. If you follow the above points your will should be valid and easy to administer. You can use a standard template or draw one up, print it out and sign it.
If your financial situation is more complex, you might need an expert to help you with your will. You can use a professional such as a member of the Fiduciary Institute of South Africa who will make sure your will is valid.
Here are some examples of when you can do it yourself and when you may need an expert.
Example: You have a simple estate, assets which are valued at less than R3.5 million and no dependants.
In this case you can draw up a will saying you leave your assets to your beneficiaries (remember to name them). If your estate is valued at over R3.5 million it will be liable for estate duty. Your executor might be comfortable dealing with this, in which case you don’t need an expert. If not, you can call in an expert who will assist you and make sure everything is legal.
Example: You have dependants such as children under the age of 18.
Minor children cannot inherit assets directly, so it is best to set up a trust for them. The trust will administer the assets so their expenses can be paid. When the child turns 18 (or an older age you have specified, such as 21), the trust can distribute the assets to them. If you don’t set up a trust the assets will fall under the management of the Guardians Fund, which can be slow in approving payments and has limits on how much they can distribute.
You can set up this type of trust in your will. You must name trustees, specify which assets will be managed by the trust, who the beneficiaries are and any other details. This can get quite complicated – trusts pay tax for example, and it may be best to get the help of an expert.
Example: You have a special needs child or adult dependant who cannot care for themselves.
Special trusts can be set up for special needs dependants, and these trusts should last for the life of the special needs dependant. Special trusts are taxed at a different rate to other trusts.
Our trust law can be quite involved so it is best to consult an expert if you are setting up such a trust.
Example: You have numerous assets, own a business or a part of a business, or your estate is valued at over R3.5 million.
Business can be complicated, especially if there is more than one owner, so it is usually best to use a professional to draw up your will.
Estate duty will be liable on estates valued at over R3.5 million, so unless your executor is knowledgeable about estate duty it may be best to use an expert to minimise your tax burden.
Estate with lots of assets, such as properties, properties in different provinces or countries, can be quite involved, so using an expert will make sure everything is properly dealt with, in accordance with your wishes.
How much does it cost?
Drawing up your own will is free – you just need to print it out and store it in a safe place, making sure your family knows where it is kept.
Using an expert can cost anything from nothing to thousands, depending on your circumstances and requirements. Some companies will draw up wills for free, with the proviso they are named executor. So, their payment comes from the executors’ fees they are due when you pass.
Others will charge a minimal fee such as R500, again with the proviso they are named as executor.
When you use a professional and name independent executors you can expect to pay in the thousands.
Your will is important – make sure it is valid
Your will speaks for you and cares for your family. It really is an important document, so it is vital that you get it right. Make sure it is valid, and if you are unsure check with an expert and ask how they can help you.