Too many South Africans don’t realise they could leave their dependents and families in dire straits should they pass away without a legal will
While millions of South Africans buy funeral policies to prepare for their passing, only around 30% have a legal will. This is according to the Transaction Support Centre (TSC), which assists lower-income clients with property-related issues, and its affiliates – research consultancy 71point4, the Centre for Affordable Housing Finance in Africa (CAHF), and conveyancing firm STBB. When a property owner dies without a legal will, they can unwittingly leave behind significant cost and anxiety for their families. Worse – it may mean their children or relatives could lose their home.
Many low-income South Africans are beneficiaries of the government subsidised housing programme. While these houses are free, they are valuable. In urban areas they typically trade for over R200,000. Owners will therefore want to be sure that their asset is passed on to their heirs without conflict, and that their heirs get the full benefit of the property’s value. “Deceased estates can take months to wind up and incur legal costs many families may not be prepared for,” says Lisa Hutsebaut, conveyancer for the TSC. “When no legal will is in place, the time and costs involved could increase significantly, and more worryingly, it could mean that the intended heir to the deceased’s estate may not be the one who ultimately inherits it.”
WHAT HAPPENS WHEN THERE IS NO LEGAL WILL
If a legal will isn’t in place, the laws of intestate succession apply, says Hutsebaut. These laws stipulate how a deceased estate must be distributed between surviving heirs. Without a legal will, the Department of Justice master’s office, which supervises the administration of deceased estates, will appoint an executor to settle any of the deceased’s liabilities and distribute the balance of the estate as stipulated in the Intestate Succession Act.
In terms of this, the spouse or registered domestic partner inherits the largest share of the estate – usually the property – with some allocation to the children, siblings, parents and other blood relatives. Children may inherit the property after the death of the surviving spouse, but this does not always happen.
NO LEGAL WILL HAMPERS A HOME TRANSFER
In one case, the client approached the TSC for assistance in transferring her mother’s property into her name. TSC discovered she was one of three siblings, which meant her siblings would have to renounce or donate their share of the property. One was willing to do so, but the older sibling, a brother, was deceased. In terms of the laws of intestate succession, the deceased brother’s share went to his child. However, because the child was a minor, he could not renounce or donate his share. The client agreed to transfer the property into her and her nephew’s name although it has implications for her ability to sell or borrow against the property until the child turns 18.
WHEN TO GET A LEGAL WILL
“Anyone over the age of 16 who is of sound mind can have a legal will drafted. As soon as a person has assets – such as property – and/or a child, it becomes important to draft a legal will,” says Hutsebaut. “A will ensures the intended heir retains their property and it avoids conflict and additional costs for the family. Now is the time for people to have the difficult conversation – to sit down with their families and say: ‘when I die, this is what I want to happen to the house,’ and then to formalise their wishes with a legal will to ensure their families have some protection.”
HOW TO GET A LEGAL WILL
Wills are usually drafted by estate attorneys, financial advisors or with the assistance of your bank. The cost generally depends on the complexity of the legal will, among other things. Some institutions will also draft a legal will for free, subject to certain conditions.
