A Will and Testament brings many questions to one’s mind and one of the most frequently asked questions we receive in our practice is “will my debts have to be paid by my children/spouse when I am no longer here?”.
Luckily, in South African law, your loved ones will inherit none of your debt. This however does not mean that your debts are written off. Your estate will still be liable for the debts that you incurred during your lifetime (such as accounts, credit cards etc) and some which become due after your death e.g. Estate Duty (tax on the amount of money in your estate, if applicable). So, the Executor of your Estate will pay your creditors and then distribute what is left afterwards as per your Will and Testament or in terms of the law on intestate succession.
We cannot stress the importance of drafting a legally sound will and testament. It is paramount that you adequately name your beneficiaries, what benefits they will receive while taking into account tax implications and estate duty.
Example 1: Paul and Jackie are married. Paul has an adult sister and an adult brother, but does not get along with his brother at all. Both Paul’s parents have already passed away years earlier. Paul and Jackie execute separate wills naming each other as sole beneficiary of each other’s estates. 10 years into the marriage, Jackie falls in love with another man and leaves Paul. Paul had been told on many occasions to immediately change his will, but due to work and other commitments, a year after the divorce he still had not changed his will. Eventually, Paul makes an appointment with his attorney to change his will as he wants to leave all his possessions to his sister, with whom he is still very close. On his way to his attorney, Paul is involved in a car accident and passes away. Because Paul never changed his will- his ex wife inherited all Paul’s assets and his sister had to bury him out of her own funds.
Paul and Jackie are married out of community of property. They have 1 child. Paul owns his own successful one-man business and Jackie is a successful estate agent. On their child’s 5th birthday, Paul, Jackie and the child are on their way to Paul’s parents for the child’s birthday party. On the way there, the family is involved in a car accident. Paul dies immediately and the child and Jackie are rushed to hospital. Because of the extent of their injuries, Jackie and the child are in hospital for a month but survivie. Paul’s will did not nominate an executor of his estate. As a result, one had to be appointed by the Master’s office. While Paul’s wife was in the hospital and there was no executor of Paul’s estate- his business fell by the way side as no-one was authorized to continue Paul’s business in his absence. As a result, Orders weren’t filled, deposits weren’t paid, and electricity accounts mounted and eventually all Paul’s assets were divided among his creditors, leaving no funds for his wife or child. Eventually Jackie’s estate was sequestrated because she could not afford the house payments etc on her own together with her mounting medical bills.
Paul and Jackie are married in community of property. They have 2 children, both are almost 18 and Paul wants all his money to go to the 2 children and often tells them this, but never gets around to drafting a will. Jackie and Paul fight constantly and start divorce proceedings. However, before the finalization of the divorce, Paul develops a heart condition and passes away. At this point the estate is only worth R 300 000. Due to the fact that Paul is married in community of property- Jackie immediately gets half the estate. In terms of South African law, if Paul dies without a will, his spouse receives ether R 125 000 or a child’s share, whichever is the larger. Therefore, Jackie also receives another R 125 000 from Paul’s estate, leaving the 2 minor children only R 2 500 each.
The above are to name a few examples of the various problems which can arise if you do not adequately draft a will.
Even if your will is soundly drafted, without adequate understanding of the law- other disasters may result. Eg: You wish your wife to inherit your entire estate, but she signs your will as a witness. In terms of South African law- you will die intestate and your wife will not be able to inherit due to the fact that she signed as a witness.
Your attorney should conduct a consultation with you in order to assess your unique needs and to advise you on certain clauses you may wish to add in your Will and Testament such as a Trust. For more information on Trusts please see our blog at https://www.hamelattorneys.co.za/trusts-in-south-africa-ensure-your-assets-are-safe/
For more information on what to expect during your First Consultation and how to prepare, please see our blog at https://www.hamelattorneys.co.za/divorce-how-do-i-know-i-can-trust-my-attorney/
We advise that you as a matter of urgency seek legal advice and assistance in drafting your will.
Please do not hesitate to contact us for assistance with your Will and Testament. Contact us today to set up your consultation at https://www.hamelattorneys.co.za/contact/ or on 012 754 3385. Our consultations may be done in person (after lock-down) or at any time, with set appointment online via Skype.
Please feel free to watch our YouTube Video here https://youtu.be/3ZHNDC6d4Is