Drafting a Will

A Last Will and Testament, or simple a will, is a legal document that directs to whom your property will pass to when you die.  A trust is also a legal document created during life or as part of your Will, whereby an individual transfers ownership of property to a trust which is managed by an individual or fiduciary for the benefit of another individual. The document specifies the purpose of the trust along with the terms and conditions by which the assets are to be managed and ultimately distributed to the beneficiaries. The legal requirements for drafting a Will or a Trust are relatively simple yet one mistake can potentially invalidate the Will or Trust entirely. 

Many services have popped up that offer do-it-yourself estate preparation software or documents. These might work fine if you have little or no property, limited savings or investments and a traditional family tree, but the rest of the population should not use these programs. It is common cause that online legal document preparation services that provide consumers with free wills often fail to meet a person’s needs unless those needs are extremely simple.

It is also likely you'll need a lawyer to definitively determine whether or not your needs are indeed simple.  For example: Do you have an estate that is taxable? Do you own significant amounts of tax-deferred retirement plans? Do you know how to fund a revocable trust?  Is there anything about your estate that is unusual, such as having children from a previous marriage or a disabled child? If you have any questions about your estate plan, you need to see a lawyer.

At Hinrichsen Attorneys Inc, there is a vast array of aspects we consider when drafting a will, these aspects include:

Revocation

Revocation is vitally important to create certainty with respect to identifying your current will. It enables you to confirm that any and all previous wills other than the most recently updated version are annulled.

Nomination of Executor

The Executor is the individual given the responsibility of dividing your deceased estate in accordance with the wishes you have set out in your will. Wills also often state that the Executor nominated therein is not required to provide security when being appointed as such.

Bequests

Naturally part of any will, it is important to concisely, and with unambiguity, deal with assets you wish to bequeath to different individuals. It is also important to state to whom the residual estate will go, thus ensuring that there is never a circumstance where property belonging to yourself is left unattended. Furthermore, it is important to be careful with residual claims, as those who receive same can often be responsible for paying into the estate where the liabilities exceed the assets and you are left with a shortfall.

Simultaneous Death

It often arises that spouses leave a joint will whereby they usually bequeath their entire estate to the surviving spouse. This naturally leaves a complicated circumstance where both spouses pass away at the same time. Due to this possibility, it becomes necessary to have a clause specifically dealing with the estate in the event that neither spouse is alive to inherit such assets.

Testamentary Trusts

Trusts have become a vital part of a will, they enable you to have far more control over your estate after your death, they also allow you to place certain individuals in charge of your estate by nominating them as trustees of your mortis causa trust. This trust also becomes incredibly valuable in circumstances where you have dependents whom rely on the income from your estate to be able to sustain themselves.

Exclusion from community estate

It is important to ensure that the rights to any amounts paid or accruing to any beneficiary in terms of your will shall not form part of the joint estate of that beneficiary and their spouse. Furthermore, it is often necessary to prevent the beneficiaries from having any control or power of administration over any of the rights or amounts paid or accruing to such a spouse. These rights and amounts shall be excluded from any accrual in terms of the Matrimonial Property Act 88 of 1984.

Organ Donation and Cremation

Clients whom come to us to draft wills regularly forget to consider whether they wish to be cremated or buried, as well as whether they wish to have their organs donated. One should always consider these choices, as well as those relating to funeral arrangements. Having these decisions included in your will enables your family to easily arrange for same without any conflicts or arguments.

Social Media

While it would still seem strange to many that your social media profiles should be included in your will, it is becoming more and more popular that you have a clause added in your will to account for the closure of these profiles. Sites such as Facebook have already implemented a 'legacy contact' which acts as an administrator of your memorialised Facebook page in the event of your death. While it currently seems arbitrary, this is an important aspect to consider.

Furthermore, critical reasons to utilise an attorney when drafting a Will or a Trust include the following:

Complex Laws

Laws are very particular about what may or may not be included in estate planning documents. For example:

• Who may serve as your executor
• Who may be a witness and where and how the witness needs to sign
• What rules and procedures must be followed when signing estate planning documents

It is recommended you have an attorney experienced in estate planning to help guide you through and clarify the process, answer any questions and prevent any potential problems.

Do-It-Yourself Estate Planning Documents

Those who believe that purchasing a do-it-yourself (DIY) estate plan in order to save a few rands will suffice could be in for a rude awakening. These off the shelf do-it-yourself packages may not be the way to go for several reasons:

• Only handle very simple estates with no complex issues
• Doesn’t deal with common complexities such as children, property that has appreciated in value or large estates that are subject to estate taxes
• If you make an error, the documents could become invalid
• Fixing errors can be costly
• No legal advice
• Doesn’t address individual’s unique circumstances
• Changes in estate planning laws
• Contingencies such as being predeceased by divorce, children or beneficiaries
• Guardianship of children
• Taxes

Complications

The following circumstances may affect the drafting of your Will and would therefore be best to obtain the advice of an experienced estate planning attorney.

• You have had multiple marriages
• You own a business
• You own real estate in multiple states
• You have an incapacitated or disabled loved one that has special needs
• You have minor children from a single or multiple marriages
• You want to bequeath some or all of your estate to charity
• You have substantial invested assets and have very specific concerns as to how your savings will be handled when you die

You Don’t Know What You Don’t Know

Finally, the biggest problem is that you are not an attorney and most likely do not know what to ask and what should be raised when drafting a will.

Attorneys are taught to anticipate situations most of us assume will never happen.  Unfortunately, the unexpected happens more often than we realise.  For example, the leading cause of death for ages 35 to 45 is unintentional injury.  Common assumptions of risk and concerns are often wrong. A skilled and experienced attorney will listen to your concerns and then counsel you based on your specific situation and related issues and guide you in the areas you need to consider.

Ongoing Support

Attempting to manage your own estate plan without legal representation could leave you abandoned and in the dark if you run into difficulties or complex issues. Hiring a skilled and knowledgeable law firm can help you avoid problems down the road and will give you peace of mind knowing you will have ongoing legal support, even after you have passed away.

Don’t rely on do-it-yourself legal forms and risk having your estate planning documents rendered invalid due to errors. Cutting corners when it comes to estate planning could adversely affect your loved ones and frustrate your intent to take care of them long after you are gone. Contacting an attorney to review and discuss the purposes and objectives for your estate will only benefit you and those you leave behind in the end.

Have questions about Wills, Trusts, and Estate Planning?

The attorneys at Hinrichsen Attorneys Inc can help navigate you through this process so that estate planning is straightforward, effective, and can be resolved promptly and appropriately.