Death is not the end.
There remains the litigation over the estate.
– Ambrose Bierce
Do I have to make a Will?
There is no legal compulsion in terms of making a Will, but it does give you a say in how your remaining assets will be distributed. In addition, it allows you to choose your personal representative or executor. An executor manages your estate during its administration. A valid Will also obliges certain named people to carry out specific tasks, and ensures that your wishes are carried out; it is consequently always better to leave a legally binding Will.
Some common questions re the importance of Wills.
When should I write my Will?
Now! Don’t wait until you think that you are about to die! You may just get the timing (and even the content) wrong.
I should’a done it! Do not procrastinate – you may just run out of time?
What happens if I die without a Will? (I.e. intestate)
Your assets are distributed according to a rigid statutory formula, not necessarily according to your wishes. The distribution of ‘intestate’ assets is predictable, with it normally being left to a spouse and children; and in the event of there being no surviving spouse, being divided up equally amongst surviving children.
At what age should you make out a Will?
When a person has a child or when a person has more assets than debts – whichever comes first. Thereafter review it every 2.5 years, or when your circumstances change.
Can I alter my Will?
Yes! You can make out a codicil … or draw up an entirely new Will. A codicil must be signed and witnessed in the same manner as the original Will. If the change is not simple, it may actually be best to make out an entirely new Will (One which should include a clause revoking your old Will).
What constitutes a valid Will?
o It must be in writing; and while it is not essential to date it – from an evidentiary point of view, it is preferable (in order to clarify which is the latest Will).
o You need to be over the age of 16 in order compile a valid Will.
o It must be signed by the testator, together with two witnesses – all in the presence of each other.
o It must be signed on each and every page by the testator.
o The witnesses must not be beneficiaries; nor must they be related to the beneficiaries of the said Will.
What is community of property?
In this form of marriage contract, the parties did not enter into an antenuptial contract prior to their marriage. Married in community means that, as the surviving spouse already owns an undivided half share of the estate, the deceased spouse would only have been entitled to provide for the devolution of their half-share of the joint estate.
Can I make out a Will on my own?
Technically this is possible; however it is preferable to have the document drawn up by an attorney. Should you do decide to go it alone, Will templates are available from some book shops. They can also be downloaded from the internet (freelegaldocs.co.za).
What should be done when a person dies leaving a Will?
The Will should be checked as soon as possible, as it may contain special instructions such as leaving parts of the body for scientific research. (Some believe that having left our organs to medical science, there is nothing to arrange as far as disposal of remains is concerned. This may have been the case when one was younger, but once one is over the hill, they are seldom interested in what’s left of you. They too can read the shelf-life expiry label). Once death occurs, the executor should be informed as soon as possible. (Legally the estate should be reported to Master of the High Court within 14 days of the death).
How many people die without having made out a Will?
A research survey published in 2007 showed that for the last three years, 55% of all adult Americans did not leave a Will. 32% of these were African Americans; with the corresponding figure for Hispanic American adults being 26% – this compared to more than half (52%) of white American adults (There is almost certainly a correlation to corresponding poverty levels). And according to a UK survey by unbiased.co.ukresearch, 30 million British adults had failed to make provisions for when they die. The phenomena was described as “Will apathy”; with almost nine out of 10 under-35s and two thirds of those aged between 35 and 54, living without a will – despite 92% of people having a firm idea of who they would like to see their money go to.
What of Intellectual bequests?
Depending on your interests and occupation, unless adequate provision for their perpetuation is made, many works of a lifetime, are lost when a person dies. A scientist for example, who at the time of death may have been working on a ground breaking, but as yet unheralded new discovery, may need to preserve it for posterity in a form accessible to others working in the same field of interest. A writer may have an unfinished non-fictional book, which in similar ilk could be continued by another author.
An academic may have collected data which could be of immeasurable value to his current and even future students. (In light of the foregoing, it is important that relevant works of a life time are saved to an external hard drive that can be accessed by others. But before you leave this legacy to others, firstly ensure that recognising its worth – that they actually want it – that they are not just being polite: and secondly that it is orderly and clean i.e. in a condition worthy of being passed on. And here it is essential that you keep your computer in a clean and organised fashion on an ongoing basis. (It is for example no good procrastinating; saying well I will clean it up at each month end, when you may unexpectedly die half way through).
Then there’s the rubbish
Always remember that the term cleaning up requires rubbish to be discarded. Those poems that have never been published because you thought they weren’t good enough – probably aren’t! Discard the rubbish yourself, and clearly categorise and label those files and folders that you think may be of interest to others. (You don’t really want your surviving spouse to scroll through screeds of bumf before chancing across an incomplete book, or outstanding photograph). While the work may be unfinished, some at least may be important enough to hand the baton on to the next generation. You also need to make the decision as to who will have access to your hard drive once you have died. Perhaps this should be a stipulation in your Will.
And then there is an ethical will
An ethical Will is not a legal document; it is a lesser known term which deals with emotions and values rather than material possessions. It costs nothing except courage and time; it has no need of executors, and is probably an expression of feelings – often expressed far too late. An ethical Will (Hebrew “Zevaoth”) is a document designed to pass ethical values from one generation to the next. Rabbis and Jewish laypeople have continued to write ethical Wills during the nineteenth and twentieth centuries. In recent years, the practice has been more widely used by the general public… and as a spiritual healing tool. (Weil; Freed).
I recently attended the memorial service of a life-long friend, during the service his daughter read a letter to his family, which described the values by which he had striven to live during his life. To hear his words expressed by his daughter was an extremely moving experience and certainly brought home to me the fact that love and values need to be expressed either prior to dying, or at the funeral in the form of an ethical Will. In his particular case, what made the letter remarkable was the fact that it was written but a few months prior to his totally unexpected death. This of course raises the question what if he hadn’t written it… possibly too many important feelings, values and emotions may have remained unsaid!
Unlike a traditional Will that concerns itself with material possessions, an ethical Will bequeaths personal feelings and values to their loved ones and family members who mourn their loss. An ethical Will need not be a tome, it can comprise of only a few paragraphs which convey to those to whom it is addressed a sense of love and worth. It invariably heightens the sense of loss, yet at the same time effects a sense of closure.
A living will or advance health directive, informs the medical team treating you, that you do not wish to be kept alive by artificial life support means. This could have a direct impact on the nature and timing of your death, and given how some of the medical fraternity, under the guise of the hypocritical (Oops! Sorry!) Hippocratic oath, are today able to keep terminal patients in limbo for months, (irrespective of the lack of quality of life, or ability to recover) it is an essential directive; without it who knows how long they may keep your living corpse going? It is a legal document which, should you find yourself terminally ill, instructs medical staff as to your end of life wishes.
Organ donor directives
These, on your death, allow your organs to be used to improve or even save the lives of others. It has been calculated that for each organ donor, seven other people could theoretically be assisted. It could be your last opportunity to perform an act of charity. But on a cautionary note – while they may have been queuing up for your body when you were younger.
Don’t expect the same desire and enthusiasm now that you have retired!
Organ donor directives and living wills do not necessarily have to be included in your Placing the Bucket planning, but suffice to say that if you have either of them you need to tell family members of both their existence and whereabouts.
And the assets – who gets what?
Don’t leave your wife your trench knife, or .45 calibre Colt combat pistol if you know that for the last 70 years she has been dragging you to church on Sundays solely in the vain hope that you would change your ways; that you would forgo the principle of the right to bear arms, in favour of a turn the other cheek policy. Similarly, wives should remember that Aunt Nellie’s Karoo ‘Koeksuster’ recipe is hardly likely to impress a husband who for 40 years has believed that McDonald’s Burgers were the mainstay of Nigella’s success! Rather leave the ‘Koeksusters’ to the local Churches Women’s Institute.
Dividing up the spoils is not normally a task resulting from the death of one spouse. The question normally arises when a second, surviving spouse dies. However, in today’s baby boomer world, longevity and increasing frailty levels, often result in surviving spouses being unwilling, or unable, to carry on living alone; increasingly the death of one forces the other to downsize and move into smaller retirement accommodation. Don’t leave this task to a surviving spouse. They will have enough emotional trauma and tasks to undertake, without the added burden of trying work out how to fit both your Harley Davidson motorcycle and the coffee table in to the newly acquired, diminutive lounge. Unfortunately when the need to down size finally arises, the negotiations in respect of disposing of family heirlooms can become quite acrimonious – even in the best of families. So perhaps it is as well to plan for the eventuality of dividing up material assets whilst all are hale and hearty. Sit down with your family and discuss who gets what. Such decisions could be based on:
Who needs what?
You may have two children, one of whom has excelled in his/her career and has no need for assistance. The other, having been less successful, may not even own a motor vehicle. In such circumstances, it would surely make sense to leave your vehicle to the latter.
Who wants what?
There is nothing wrong with asking family members which items they would particularly like. And even considering whether some family members have reasonable prior claims to individual items. For example, if your daughter gave you a painting for your 70th birthday, then to my way of thinking, it could first be offered to her. However, be warned – firstly, in the absence of family consultations and consensus, your intentions may go sadly awry. (You may even die earlier than you had planned!)… and secondly, in this modern era, where noise has supplanted real music; and digital technology has replaced darts and dominos as sources of entertainment, don’t expect the younger family members to be queuing up for your Elvis LP’s; or Board Games.
But take care!
On the topic of divvying up your worldly possessions, if you should observe your children going round your house placing blue and red stickers on furniture items, I would become a little concerned, and probably wouldn’t eat any strange tasting food until I had witnessed someone else safely consuming it!
…Of course if you do leave your wife your Harley Davidson motor-cycle, Mildred and her could have a great time attending Women’s Institute, or WA meetings.
By Henry Spencer