10 Consequences of Dying Without a Will

writtenYes, we know the story. Life is simply far too frenetic to worry about drafting your Will right now. The routine sounds oh-so-familiar. Wake up, shower, get dressed, grab a protein shake as you rush out the door, drop the kids at school, go to work, juggle meetings, phone calls, emails, go home, hopefully have time to go for a run with Fluffy, help the kids with homework, shovel down a meal while watching last week’s episode of Big Bang Theory on PVR, shoot off a few more mails on your phone, go to bed. Repeat.

This hamster wheel of life seems an endless cycle, until the day we die. The one commonality that we all share is the certainty of death. And the uncertainty of when we will die. In the bloom of youth death seems but a distant event on the horizon of life. In the frenetic middle-aged period there is always that urgent thing that needs doing before we can focus on the important things. But for some, waiting for one’s twilight years before contemplating one’s Will may just be too late.

Take, for example, the forty-nine year-old executive with three young children. The wife’s shopping habits are nearly as expensive as the private schooling. Fortunately business is good and life looks rosy. The Will can wait for another while still: there’s a proposal that needs compiling and a tender that needs responding. But Life – and Death – have this unfortunate way of interfering with the best-laid plans. One heart-attack later and it’s too late to draft that Will. The age-old problem of solvency versus liquidity isn’t confined to the business realm. Because in this scenario, while the family is, on paper, left comfortably well-off, they don’t have access to the money! Dying without a Will (or intestate) has some pretty scary consequences. Take a moment to consider these 10 consequences of dying without a Will.

  1. The person appointed to wind up your estate, close accounts, distribute assets is called an executor. You can appoint this person yourself in your Will. Without a Will you cannot have named an executor, and therefore the Master of the High Court will appoint one for you. This means potential delay, expense and frustration. And your family loses control over what happens in your estate.
  2. If you have children, their portion of the inheritance will be placed in the state-run Guardian’s Fund, where the money will remain, earning 2% per year, until they turn 18. They will then receive all of their money when they turn 18, whether or not you would have chosen that option at that point in their lives.
  3. If you have a life partner (“common law” relationship or same sex relationship) he or she would have to prove this relationship before being able to inherit. And if your family members oppose his or her claim on your estate this could result in expensive and protracted court battles. If you have a Will, you can simply name your partner in the Will and eliminate all the extra paperwork, expense and frustration.
  4. There is no opportunity to select guardians for your minor children. Any parent knows how important it is to make sure that your children are in the hands of someone you trust implicitly. Without identifying your chosen guardian, a court order may be required for a guardian to be identified and appointed. And the person appointed may not be the person you would have wanted to look after your children.
  5. Your estate gets distributed according to the laws of intestate succession. You have no control over who inherits, and in what proportion. Without a Will you are unable to exclude or include beneficiaries, or change the amount that your beneficiaries get to inherit. This can also result in family squabbles as they argue over the silverware, diamond rings and Fluffy the pitbull.
  6. You’ve lost the opportunity to specify any burial preferences. Do you know what your loved ones want as their burial preferences? It’s a difficult issue to discuss, so specifying your preference in your will is a good solution.
  7. You’ve lost the opportunity to provide for your family by means of a trust. Your assets will be distributed to everyone personally as opposed to being placed into a trust administered by trustees identified by you, whose aim is to preserve the capital and ensure your family has enough resources in years to come.
  8. The state-appointed executor may decide to sell certain assets that you would have wanted to be kept for your family’s security or for investment purposes or sentimental reasons.
  9. In the event of a common disaster (where your whole immediate family passes away, eg a car accident), portion of your estate may go to a relative that you may have never spoken to or don’t even like. By drafting a Will you can decide who your estate goes to in this scenario.
  10. You’ve lost the opportunity to apply savvy estate-planning, and you’re unable to take advantage of any tax saving mechanisms. This can be costly for your family.

You can avoid these potential problems simply by drafting your Will. Drafting a Will is a relatively easy and inexpensive exercise. Not drafting a Will has complicated and expensive consequences. A Will is the most critical, yet often neglected part of a sound estate plan. Yet a worrying number of people put it off. If you haven’t got a Will, and if you’re thinking of all the reasons why you don’t “need” to have a Will right now, then check out our 10 Myths around a Will. Then go get that Will drafted!

Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.