Why Pay For a Will When I Can Get One For Free?

There are many websites that offer ‘do-it-yourself’ Will templates with instructions and there are many institutions which offer to draft a ‘free’ Will. Why then should you consider paying to have a Will drafted for you? 

Where your Will is drafted has an influence on who the executor of your estate will be, and it is important that you are comfortable with the executor appointed in your Will. Read more about the executor and the responsibilities in this article. Although some institutions offer the service of drafting a Will for free, they normally are appointed as the executor of your estate in the Will. This means that there is no initial fee for the drafting of the Will, but the fees earned as the executor is where the return is made. Further, it is the practice of some institutions to refer estates to a panel attorney should the estate not be the large enough to handle inhouse. Having an attorney draft the Will at a fee allows you to choose who the executor is. With GalileoWills the nominated executor is the group of attorneys at Galileo Advisory Services.

When it comes to the quality of your Will, there is also an advantage in consulting with an attorney which specialises in the drafting of Wills and the administration of deceased estates. The quality of the Will is a result of Will drafter’s experience and understanding of the relevant laws. Part of the fee you pay goes to the advice which is given at the level of expertise of that professional and the knowledge which they use to draft the will. Depending on the particular requirements of your estate there is greater or less merit in paying a large fee.

So why get a Will with GalileoWills? We have a combined experience of 50 years as attorneys in drafting Wills and fulfilling the function of executor. Our approach at Galileo is to work in consultation with the surviving family to understand their needs with the aim to wind up the estate as quickly as possible no matter the size. The Will which is created through GalileoWills has been drafted and reviewed by a number of Attorneys who specialise in Wills and Estates. We are confident in the quality of the Will produced through GalileoWills, the guidance which the articles give, and the services which we offer as an executor, which is why we charge a small fee.

Although it may seem easy to ‘DIY’ your Will or tempting to get a Will for ‘free’ keep in mind that there may be potential unwanted consequences either resulting from the lack of knowledge of the drafter of the Will or the fees which the executor will charge in relation to the estate. 

The Costs Associated With Winding Up An Estate

When a person dies there are several costs associated with the winding up of the estate other than settling the debts and liabilities of the deceased. These costs are paid by the estate from the assets in the estate. 

All estates are subject to Estate Duty. Estate Duty is set at 20% (or 25% of estates over R 30 million) of the value of the dutiable amount of the estate and is payable to SARS. The dutiable amount is determined by deducting all liabilities together with certain other deductions contained in section 4 of the Estate Duty Act No. 45 of 1955 from the gross value of the estate. Some relief is given through the ‘primary rebate’ which provides that an amount of R3.5 million can be deducted from the value of the estate. Testators can also leverage the section 4q deduction which provides that the amount bequeathed to the surviving spouse is to be deducted from the value of the estate (eg: if the whole estate is left to the spouse then no estate duty is payable). 

All estates must be reported to the Master of the High court. The Master charges a fee on a sliding scale which starts at R 600 for estates over the value of R 250 000, thereafter for every R 100 000 a further R200 is added to the fee which is capped at the total of R7 000.

The process of administering estate requires the executor to perform certain tasks that bring general costs levied against the estate. These tasks include:

– Advertising the estate and drafting the Liquidation and Distribution account 

– Evaluation of assets

– Opening a bank account and settling the bank fees 

– Transferring of any immovable property to the beneficiaries. 

For more information on the process of administration of an estate please read this article

The executor is entitled to a fee for tending to the administration of the estate. The minister has set the amount in which the executor is entitled to at 3.5% of the gross value of the estate as well as 6% calculated on the income of the estate. The executor’s fee covers all the consultations related to winding up the estate, all the attendances required by the law, and the Will of the deceased. The fee amount is to compensate the executor for the amount of time spent and the number of attendances which winding up the estate requires. Further, the fee compensates the executor for the risk stemming from the fiduciary duty towards the estate, which could result in their liability for any negligent conduct. For our view on executor fees please read this article on the Executor. 

The costs related to winding up an estate is unavoidable. However, with a valid Will and some estate planning, you can minimize unnecessary costs. If you would like guidance on who to leave your estate to please read this article or choose package 3 to arrange a consultation with an attorney.

The Process Of Administration of a Deceased Estate

When a person dies the family of the deceased is responsible for reporting estate to the Master. If the executor is nominated in the Will the family will have to contact them to start the administration process.

The first consultation between the family and executor is used to discuss the content of the Will and to complete and sign the documents required to report the estate to the Master. The surviving family members will sign the death notice which will be submitted to the Master together with the death certificate, acceptance of executorship and a number of other documents, and most importantly the original Will.  The Executor will assist the family with the completion of the documents.

Once the estate has been reported, the Master will issue the Letters of Executorship appointing the executor. At this point, the executor will have the authority to administer the estate of the deceased. The executor is to give 30 days’ notice to the creditors and debtors of the estate to lodge any claims against the estate and open an estate bank account.

Once the executor has gathered all the balance certificates, valuations of assets and all liabilities regarding the estate, the liquidation and distribution account (“L&D”) will be drawn up reflecting the position at date of death of the estate, how the assets of the estate will be dealt with and to whom it will be awarded to. The executor may sell assets if necessary and collect all monies owed to the estate. The executor will also be able to pay the necessary costs from the cash available in the estate.

The executor is required to lodge the first draft of the Liquidation and Distribution account at the Master of the High Court within six months of the Letters of Executorship being granted. The Master will inspect the L&D and if there are no queries the executor must arrange that the account must ‘lie open’ for inspection by the public for a 21-day period at the local magistrate’s office.  Notice will be provided in the form of an advertisement. 

If there are no objections raised to the contents of L&D during the 21-day period, the executor will be allowed to distribute the estate assets to the benefices of the estate. The executor will then be entitled to take his/her fee for the work done in administering the estate.

Once all the assets and cash have been distributed to the heirs, the executor will certify to the Master that the estate was distributed in terms of the L&D and provide the Master with all the necessary supporting documents. At this stage, the estate has been wound up and the Master will issue a filing notice to release the executor from his/her duties.

What To Consider When Creating A Will

South African law gives testators[1] a near absolute freedom of testation. This means that testators can freely choose to benefit, or not benefit, anyone they please through the bequests made in the Will.[2] It is important then, to think carefully about what is included in your Will while completing the GalileoWills process.

Two main aspects to consider are the bequests (along with different tiers of beneficiaries) and estate duty.

The bequests

A Will should direct how the whole estate of the testator is to be distributed. This means that the testator must choose to whom and how the whole estate shall be distributed in his Will. Freedom of testation allows the testator to choose anyone to benefit under the Will, however, not everyone who is chosen shall have the same outcome for estate duty purposes (see below). Further, when planning who is to benefit under the Will, keep in mind the principle in South African law which requires a beneficiary to be alive in order to inherit. It is good practice to appoint multiple tiers of beneficiaries as the first-tier beneficiary may predecease you.

We recommend that minor children are not chosen as first-tier beneficiaries while completing the GalileoWills process. The reason is that minor children are not able to receive an inheritance until they reach the age of majority (currently 18 years of age). This means that an inheritance awarded to them must be held in either a testamentary trust created in a Will or in the publicly administered Guardian’s Fund. The Will created for you by GalileoWills includes a basic testamentary trust in order to prevent any inheritance from being held by the Guardian’s Fund. If you want to nominate a minor child as the first-tier beneficiary, please contact Galileo Advisory Services, as a testamentary trust with extended provisions is required.

Leaving the whole estate to one person

If the testator is married,[3] leaving his/her entire estate to the surviving spouse has certain practical and financial benefits. The estate duty benefits are outlined under the relevant heading. The practical consideration is that the first-dying spouse can financially provide for the surviving spouse. Further, if there are minor children, the surviving spouse would be responsible to provide them. Leaving the whole estate to the surviving spouse also mitigates the risk of an accrual claim against the surviving spouse by the deceased estate, if the matrimonial regime is married out of community of property with the accrual system included.

Another practical consideration is that by leaving the whole estate to one person, there is a lower chance of assets having to be realised (sold) in order to distribute the estate in percentages to multiple people. In addition, after all expenses (including an accrual claim) are paid from the decease estate, the amount awarded to the person chosen will be greater than if the estate was split in percentages or if there are a number of specific bequests.

Leaving the whole estate to multiple people in percentages

Leaving the whole estate to multiple people in percentages, allows for the exact content of what makes up that percentage to be agreed upon between the beneficiaries, while keeping the amount each beneficiary receives the same.

This option is useful where the testatrix wants to leave her estate directly to multiple children or to siblings. This option is also useful for providing for parents or siblings who are financially dependent, while still leaving the majority of the estate to another person. It should be kept in mind that the amount which each person will receive is determined after expenses are paid from the estate.

Leaving specific assets to specific people

If a testator chooses to leave specific assets to specific people (called legatees), then the remainder of the estate is referred to as the residue. This means that the testator will also have to decide who will receive the residue of the estate after the specific assets are awarded to the legatees. If that specific bequest fails, then that asset will fall part of the residue.

The advantages of choosing to leave a specific asset to a legatee is threefold: first, a specific asset can be allocated to one person without having to leave the whole estate to that person; second, the deduction of R 3.5 million for estate duty purposes can be leveraged (as discussed below); third, the costs associated with administration of the deceased estate is deducted from the residue, thereby protecting that asset from being realised if there is insufficient liquidity in the deceased estate.

Different tiers of beneficiaries

Due to the principle that a beneficiary must be alive in order to inherit, due consideration should be given to who will benefit under the Will if the first person chosen should die before the testatrix. GalileoWills assists with this by making provision for three tiers of beneficiaries. For example, the first-tier beneficiary will inherit first, if that person dies before or simultaneously with the testatrix then the second-tier beneficiary will inherit.

Estate Duty Considerations

Estate duty is payable by all deceased estates except in certain circumstances. Estate duty is calculated on the dutiable amount in the deceased estate. The dutiable amount is determined by deducting the allowable deductions, section 4A primary rebate and the portable rebate as set out in the Estate Duty Act 45 of 1955 (“the Act”) from the gross value of the estate. This means that the amount of estate duty payable by the estate can be reduced by leveraging the allowable deductions and the section 4A rebate.

For the purposes of creating a Will, two deductions should be considered. The exemption contained in section 4(q) of the Act provides that no estate duty shall be levied on the amount inherited by the surviving spouse from the first dying spouse. Therefore, if the first dying spouse bequeaths his entire estate to the surviving spouse, no estate duty will be payable.

Section 4A of the Act applies to all estates and makes provision for a primary rebate which is a deductible amount of R 3.5 Million when determining the dutiable amount in the estate. For example, if the testator bequeaths an asset to his sister, which is valued at or below R 3.5 Million, then no estate duty will be levied on the value of that asset. The R 3.5 Million (or whatever amount remains) primary rebate can also be ported to the surviving spouse if the first-dying spouse does not use it. This has the effect of increasing the surviving spouse’s primary rebate by the ported amount. For example, if the surviving spouse inherits the whole estate from the first-dying spouse, and the first-dying spouse does not use the section 4A primary rebate, then the surviving spouse’s total primary rebate will be R 7 Million for estate duty purposes.

Therefore, when you are working though the options presented to you by GalileoWills, is it helpful to keep in mind the two aspects above. However, if you are still uncertain about how to distribute your estate, you can opt for our Advanced Package, in order to arrange a consultation with our legal practitioners.

 

[1] The reference to one gender shall include all other genders.

[2] There is a general prohibition on unlawful or unconstitutional stipulations

[3] Marriage includes a civil Union and marriages in terms of customary law and religious rites.

The Executor

The executor is the person who is given the responsibility to administer and wind up the deceased estate. This means that the executor will attend to the process whereby the deceased estate is liquidated and divided among the heirs / legatees.

For example, where there is a valid Will, the executor must follow the directions set out in that Will, on how the deceased estate’s assets are to be distributed among the heirs. The executor is also responsible to liaise with the creditors of the deceased estate, with the South African Receiver of Revenue, the Master of the High Court and the deceased’s family. Further, the executor is entitled to charge a fee for the services rendered which is guided by regulations published by the Minister under the law.

The executor therefore plays a central role and should have experience in the administration of deceased estates, along with a strong knowledge of the legal aspects of the administration process. Executors can either be a hinderance to winding up the deceased estate or they can make the process seamless through properly attending to their responsibilities.

A testator[1] can nominate anyone to be executor in their Will. The testator can choose to either nominate a family member (or friend), or a professional institution such as a firm of legal practitioners, or a combination of a family member alongside a firm of legal practitioners.

In the Will created for you by GalileoWills, we automatically include the appointment of a team of experienced legal practitioners as the executor of your estate. Our team at Galileo Advisory Services has more than 50 years of combined legal experience in the administration of deceased estates. We also have a national presence with regular attendances at various Master’s offices which expedites the administration process.

Galileo Advisory Services follows an approach of upfront discussion and negotiation regarding fees. This is so that we can agree on a reasonable fee amount which will be covered by the deceased estate. We seek to involve your loved ones in the decision-making process during the administration of the deceased estate to make sure that all their needs are properly understood and accounted for. We strive to wind up the estate as soon as reasonably possible in order to give effect to the wishes expressed in your Will.

Therefore, when you sign your Will created with GalileoWills, you can rest assured that your estate will be administered by skilled and experienced executors, who put your wishes and your loved ones’ interests first.

 

 

 

 

 

1 The use of one gender includes the use of all genders.

When & Why To Amend My Will

A Will is an important document which gives expression to the testator’s[1] wishes on how his estate will devolve after death. A Will is a means of taking care of and providing for loved ones after death.

It is therefore important to regularly review the content of your Will to make sure that it aligns with your wishes. There are a number of occasions, other than changing one’s mind, where it becomes necessary to review and possibly amend a Will, three of which are covered here: a change in marital status, the birth or adoption of a child, and the death of a someone named in the Will.

A change in marital status

Getting married[2] is an exciting event where all the focus beforehand is on the preparation. Depending on the matrimonial regime chosen, there will be different outcomes at the end of the marriage, by either death or divorce. It is therefore important to have ‘review my Will’ or ‘create a new Will’ on the to-do list. To not make provision for the surviving spouse[3] in a Will when the marriage ends as a result of the death of one of the parties, can lead to unwanted and sometimes negative consequences.

For an example: should the parties be married out of community of property and not amend their Wills to make provision for the new spouse, it could result in the surviving spouse not receiving anything from the first-dying spouse’s estate.

At the end of a marriage due to divorce, the Wills Act 7 of 1953 provides that the ex-spouse shall be presumed as pre-deceased should a testator die within three months of the dissolution of the marriage. It is a principle in South African law that a beneficiary must be alive in order to inherit. Should the beneficiary not be alive at the time of death of the testator (or presumed as pre-deceased), then a named substitute beneficiary shall inherit. Failing a substitute, the bequest falls into the residue of the estate.

Should there be no residuary heirs then that inheritance will devolve in terms of the laws of intestate succession. The effect of this is that the ex-spouse cannot inherit under the Will within the three-month period, even if he/she is nominated as a beneficiary. After a lapse of the three months, an ex-spouse can inherit under the Will if it is left unchanged. Thus, it is important to review one’s Will to prevent unintended consequences.

At the birth or adoption of a child

There is no automatic right in South African law for children to inherit from their parents, unless the laws of intestate succession apply. Should the child not be included in the Will then that child will not inherit.

Therefore, at the birth or adoption of a child, one’s Will should be reviewed to make sure that that child is included. Further, the Will should be reviewed to appoint new guardians to take care of minor children in the event that no natural guardians are alive.

At the death of a person named in a Will

As an heir has to be alive in order to inherit, Wills should include named substitute beneficiaries. This means that if the primary named beneficiary in a Will dies, the substitute named beneficiary will inherit.  Therefore, when a named beneficiary dies it is necessary to review a Will to ensure that someone has been named to inherit, otherwise the rules of intestate succession apply.

 

Having a Will is vital, but maintaining and keeping your Will up to date is equally important. For this reason, GalileoWills makes reviewing and updating your Will convenient. Simply log in to your profile to make use of up to three free Will amendments.

 

[1] The reference to the one gender includes other genders.

[2] Marriage includes a civil Union and marriages in terms of customary law and religious rites.

[3] Spouse also includes a partner in a civil union and spouse(s) married in terms of customary law or religious rites.

Why Galileo Wills?

At GalileoWills, we do not believe that one size fits all. If you are a foreign tax resident, or own foreign assets, the GalileoWills platform is unfortunately not suitable for your particular needs. However, if you do meet these criteria, please contact us so that we may set up a consultation and draft a Will that is tailor-made for your needs.

For anyone else, the GalileoWills platform makes creating a Will accessible and seamless – regardless of your knowledge of the laws of succession.

The Will, created through the GalileoWills platform, has been shaped by years of experience gained through consultations with clients, providing legal advice and the drafting of Wills. Further, the platform contains questions throughout each step of the process that are designed to direct and guide you in the creation of your Will. This means you can rest assured that your Will is complete and comprehensive.

What is a will and why do I need one?

A Will is an important document for several reasons. Yet, most of all, it provides you with a way to look after your loved ones when you are no longer alive. A Will expresses your wishes and gives direction to an executor regarding how your estate should devolve. By not having a Will, you may cause unintended difficulty for the very ones you would want to look after.

How does a Will work?

In South Africa, when a person dies, they die either testate or intestate. This means that their assets and affairs will either be governed by the provisions of a valid Will (testate succession) or by the law of intestate succession (in the absence of a valid Will). Every testator has the freedom of testation, which allows them to choose who will benefit under their Will and to what extent. Further, the testator can give direction to the executor on how the affairs of the estate are to be managed.   Therefore, by creating and signing a Will, you can give clear direction to the executor to administer your estate according to your wishes.  Without a valid Will, the executor must rely on the direction given by Intestate Succession Act 81 of 1987 (“the Intestate Succession Act”).

Why do you need a Will?

The provisions of the Intestate Succession Act need not be considered bad or deficient, however, because the Intestate Succession Act is a law of general application focusing on blood relation, it is seldom in line with your wishes. There are then, several benefits from preventing the law of intestate succession from applying, some of which are briefly listed below: –

The first benefit is that a Will allows you can choose who shall benefit from your estate. It gives you the ability to provide for your loved ones in a way which is tailored to your circumstances. If the provisions of the Intestate Succession Act apply only members of your family (blood relation or by marriage) can benefit from your estate. Further, the Intestate Succession Act sets out the circumstances under which certain family members can benefit.

The second benefit is that by choosing who is to benefit from your estate you can leverage beneficial estate duty and tax provisions available to you.

The third benefit is that you can give direction on who should be the guardians of any minor children and who the executor of your estate should be (for more information on Galileo as your executors please follow this link). This will speed up the administration of the estate and ensure that your children are taken care of by the people you trust.

The fourth benefit is that you can make provision for the possibility of a minor being the beneficiary of your estate. This is done by directing that a testamentary trust is to be created in such circumstances, GalileoWills includes this automatically. In the absence of any direction, in a Will or otherwise, that minor’s inheritance is held in the publicly administered Guardian’s Fund until they reach the age of majority (currently 18 years old).

The fifth benefit from having a Will is to avoid the unintended or unwanted consequences which may result from the Intestate Succession Act being applied. Depending on the circumstances this may result in added stress to your loved ones during a time of grief. Further the persons who can benefit from your estate is limited to blood relatives, a life partner for an example will not be able to inherit.  The provisions of the Intestate Succession Act also set out under what circumstances certain family members may inherit. For an example if you are survived by your spouse and children, your estate will be split between surviving spouse and your children.[1] This will happen even if it makes better economical sense that the surviving spouse inherits the whole estate.

When do you need to get a Will?

By having a Will, you remove the administrative burden which would otherwise fall on your loved ones. You can give clear direction on how your estate is to devolve regardless of the value of the assets in your estate. As a result, we recommend that if you are a South African citizen or tax resident or own assets in South Africa you should have a Will. There are, however, certain circumstances which make having a Will more important than the general answer above. These are: – 1. Getting married / entering a civil union or life partnership, 2. Purchasing immovable property (e.g.: a flat or house), 3. At the birth of a child or if you have children, 4. If your estate has a positive net worth, 5. If there is a family member or another person finically dependent on you.

How does GalileoWills make it easy to prepare a Will?

Even though a Will is an important document, the preparation and signing of one is often left undone in today’s fast paced world. GalileoWills provides an easy, time efficient and professional platform through which you can complete the drafting of your Will within 15 minutes (just by following the three easy steps). This can even be done from the comfort of your own couch. A small investment of time and money now will give you the benefits outlined above and the peace of mind that you have made provision for your loved ones.

[1] The exact manner and portions are determined by the application of the provisions of the Intestate Succession Act.

What Makes a Will Valid?

In a world of digital communication, South African law has been playing catchup to keep current with new technologies. Only as recently as 2002, under the Electronic Communications and Transaction Act, has electronic signatures been recognised. Unfortunately, the law of succession has lagged behind and the requirements for a valid Will have remained relatively unchanged since the Wills Act 7 of 1953 as amended from time to time (‘the Wills Act”). Further, the Master of the High Court still requires an original valid Will when reporting the estate.

A Will is valid only when it complies with the formalities set out in the Wills Act. If Will does not follow the formalities, there is a ‘rescue provision’ which enables the High Court to find that document to be a valid Will. The court, however, applies a strict and narrow approach to what is allowed. All the requirements for a valid Will shall not be worked through here, rather three requirements will be briefly focus on prevents an email, electronic document, voice note or instant message from being accepted as a valid Will. Further the need for an original physical Will to be kept in storage will be stated.

 

The Will must be a written document

The Wills Act does not expressly require that the document be written and in physical form, it is however, implied from the requirements that the document must be signed in certain places by the testator and witnesses together with the reference to pages. Further at the time of the drafting of the Wills Act electronic written documents did not exist.  This unfortunately results in a narrowing of what will be normally be considered a valid Will to a written document in physical form.

 

The Will must be signed and witnessed

The Wills Act requires that a document purporting to be a Will must be signed[1] first by the testator and then by two witnesses who are all present at the same time. Each page of the Will must be sign by the person executing the Will together with the two witnesses. Furthermore, the Will must be signed at the end by the testator and two witnesses to be valid.  This has the result of precluding voice notes, instant messages, and emails from being accepted by the Master of the High Court, as they cannot be executed and witnessed in the require way.

 

The Will must be original

If the original version of your Will cannot be located it will be presumed that you died without a valid Will. This means that the laws of intestate succession shall apply. This precludes an electronic copy of your Will from being accepted by the Master. If there is an electronic copy of the original Will, the High Court must be convinced that the document is in fact a true copy your latest valid Will. Therefore, the storage of your original Will is important, and you loved ones should know where it is located. For this reason, GalileoWills securely stores your original Will once the courier delivers it to our offices.

In conclusion, the requirements for a valid Will as set out in the Wills Act does not make provision for an email, electronic document, voice note or instance message to be accepted as a Will or to give direction to how your estate is to be administered. The requirement for an original physical Will by the Master means that your Will, after being executed, will need to be kept in safe storage.

[1] The use of a mark or fingerprint has its own requirements alongside the general requirements for a signature.