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Estate Planning, Family Matters

7 things to consider when you draft a will

Posted on by Dante Botha

why write a will

  1. Template or custom-drafted?

When it comes to drafting your Will, the first thing to decide is: where will you get one from? Are you comfortable with using a template, or would you prefer for someone to draft it for you? If your situation is relatively uncomplicated a template can be an easy and cost-effective option. But if you’re hesitant or have more complex requirements then chat to a specialist for some guidance.

Many people get their Wills drafted by their bank or insurance broker, usually because it’s free or cheap. Bear in mind that the reason this route is cheap or free is because the bank or insurance broker generally names themselves as the executor. This entitles them to earn the executor’s fees for winding up your estate upon your death. Many people are comfortable with this. But it’s important to realise that this is not the only route to go. You can insist on executors of your choosing. Your bank or insurance broker will either acquiesce, charge you a higher fee for the Will, or refuse. Either way the final choice should always be yours, and if you don’t agree with their terms you can always get your Will drafted elsewhere.

  1. Appointment of the executor

The executor is the person who administers your deceased estate. This is the person who liaises with the Master’s Office, closes your bank accounts, settles accounts with your debtors, collects money owing to your estate, sells properties, distributes assets, and generally makes sure that your wishes in your Will are adhered to. This person should be organised, trustworthy, honest and methodical.

You should decide who your executor (and alternate executor) will be. But if you’re looking at your loved ones and shaking your head (none of them fit the description of the ideal executor!) you needn’t fear. The Will should give them “power of assumption”, which means they will be able to appoint an expert to wind up the estate in their stead. Alternatively, you can appoint someone unrelated to you as your executor, such as your investment advisor or attorney.

  1. Beneficiaries

Are there any possessions that you want to gift to certain people? Eg. Your grandmother’s engagement ring must go to your niece, and your vinyl collection must go to your best friend. You can specify any of these bequests in your Will. Effect is given to these bequests before your estate is distributed to your heirs.

  1. Heirs

After all bequests are distributed (if any) who will inherit the balance of your estate? You can name one person or any number of people. Make sure that you specify the extent of each person’s share. Eg. Your parents get 40% each and your brother gets 20%. You may also want to specify alternate heirs, eg. Your wife inherits everything, but if she dies before you or in the same calamity, then your sister inherits everything.

  1. Testamentary trust

If there’s any possibility that there’ll be heirs who are still children, it would be a good idea to include a trust in your Will. A testamentary trust is a trust that is only created if certain conditions are met, ie. it’s only created:

  • after your death;
  • if any of your heirs are minors at the time of your death;
  • if your minor heir’s share exceeds the amount specified in your Will.

You may also want to name trustees in the event that a testamentary trust is required.

  1. Guardians

If you have minor children, it would be a good idea to name guardians in your Will. These guardians would look after your minor children in the event that you die and their other parent is predeceased, alternatively dies in the same calamity as you.

  1. Mortal remains

Burial or cremation? Your Will is a good place to let your loved ones know what they’re to do with your remains.

Very importantly, read your Will before signing it. If you’ve appointed someone to draft it for you and there’s anything you don’t understand, ask for an explanation. If there’s anything you don’t agree with or is not in accordance with your wishes, ask for it to be changed. And above all, if you’re not comfortable with it, don’t sign it.

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.