Owning property without a will

Most people wait until they are old to make a will. My advice is if you are employed and/or you own any assets the first thing you do is to make a will.
Remember, it does not mean you are going to die once you make a will.
Let us look herein under the circumstances whereby you die without a will.

If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would want to inflict on their loved ones during a time of loss.

Marriage and property

Depending on the type of your marriage. You will have to put the following information in mind when drafting your will.


Married in community of property

Its important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.


Married with accrual

If you are marrieds in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale to the of assets you had not intended to be sold.
Alongside your Will, you should also prepare the following in relation to any immovable property you may own:

  • State where your title deeds are kept and record any outstanding bonds and all insurance
  • File up-to-date rates and taxes receipts
  • Record details of the leases on any property you have
  • State who collects the rent
  • State who compiles your yearly accounts
  • State where your water, lights and refuse deposit receipts are kept.


Let us now focus on the circumstances whereby you die without leaving a will

According to Intestate Succession Act, 1987, your estate will be distributed as follows::

  • Only spouse survives: Entire estate goes to spouse
  • Only descendants survive: Estate is divided between descendants.
  • Spouse and descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and the descendants
  • Both parents survive: Total share is divided equally between both parents
  • One parent: Total estate goes to the parent
  • One parent and descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants
  • No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through the mother; half to descendants through father.
  • No spouse; No descendants; No parents; No descendants through mother or father: Full proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.


Lastly let us look at the requirements of a valid Will for someone who is unable to sign a document

In case of a person being unable to sign a document for whatever reason, there are certain regulations which should be observe d to ensure the validity of the document. Someone can be requested to sign it on your behalf or you can sign it by making a mark (such as thumb print or cross).
Should you make the mark or someone sign it on your behalf, the document must adhere to the following requirements:

  • The will must be in writing. It can be handwritten, printed or typed
  • The testator must sign the will at the bottom of the last page by making a mark (e.g. a thumb print or cross), or if someone signs on his/her behalf, this person must sign at the bottom of the last page in the presence and at the instruction of the testator.
  • The mark or signature of the person who signs on behalf of the testator must be made in the presence of two or more authorized witnesses as well as a Commissioner of Oaths.
  • The witnesses must acknowledge and sign the will in the presence of the testator and on another. Should the will be signed by another person, it must also be executed in the presence of the testator and a Commissioner of Oaths.
  • Should the will consist of more than one page, each page save the last must be signed, anywhere on the page, by the testator or the person who signs on his/her behalf
  • A Commissioner of Oaths must certify that he/she is satisfied with the identity of the testator and that the will reflects the wishes of the testator
  • The Commissioner of Oaths must sign a certificate and also sign anywhere on each page of the will

Legislation regarding where the Commissioner of Oaths, the testator and the witnesses should sign the will, as well as where and when the Commissioner of Oaths should add his certificate to the will, can be confusing. We therefore recommend that each page of the will be signed by the testator, witnesses and the Commissioner of Oaths, and if the will consists of more than one page, that the certificate from the Commissioner of Oaths be added to each page.

Should a will or parts thereof be deemed as invalid after your death because these requirements were not met, it may have dramatic consequences for those whom you meant to benefit from your will. Therefore, to avoid such, make sure that you meet all the necessary requirements.


LIVING WILL

What is a Living Will?

A living will enables you to state specific medical wishes if you are alive, but unable to communicate with them. Artificial life support in the case of a comma or terminal illness is an issue often discussed in such a document. Preferences regarding administering of pain medication, artificial nutrition and other treatments can be dictated in this document.

The Terry Shaivo case shows what can happen if this document is not in place. The legal battle between her husband, family and state of Florida lasted for years before she was granted her wish and taken off life support.


What is Health Care Power of Attorney

With this type of power of attorney, you give someone else the power to make health decisions on your behalf. These decisions regarding serious health and emotional crises will be made based on instructions which you have given to your power of attorney beforehand. Sometimes a living will is combined with a health care power of attorney, because both of these can be revoked, i.e it can be cancelled at any time by destroying it, communicating your wishes to your doctor, writing a letter regarding the cancellation or by creating a new living will and health care power of attorney, indicating that the new will revokes all the previous ones.


Start the conversation

Every family’s legal needs are different, so perhaps you should take the first step in being prepared for the worst. Remember that every time your family composition changes, like when a child is born, you need to adapt your will to include them. Start the process and be prepared.


References:

http://www.privateproperty.co.za/advice/property/articles/the-importance-of-a-will-for-homeowners/5017
http://igrow.co.za/how-property-passes-on-death/
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions or for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions accepted (E&OE)