Five myths about writing a will

Far too many South Africans still don’t have a will despite this being crucial to reducing financial and administrative stress for those you care for after you die.

Our reasons for not prioritising writing a will are often behavioural ones and sometimes they stem from misconceptions or lack of information about the process.

An online survey of 1200 South Africans recently conducted by Sanlam that found only 65 percent of people have a will.

“Optimism bias pushes death into a distant future, and present bias makes the effort of drafting a will feel immediate while the benefit sits in the future, largely for other people,” psychologist Mavis Mazhura says in her comments on the survey.

“Estate planning also brings mortality, money, family roles and potential conflict into one room, so avoidance offers temporary relief,” Mazhura says.

But when a family member dies, people experience the process and realise the importance of having a will – and often feel the frustration of winding up an estate that has not been planned well. Sometimes people write wills, or at least realise they need a will, after having or adopting a child, getting married, falling ill or getting financial advice.

Many then still put off writing and signing a will because they have one or more of these false beliefs:

I only need a will if I am old or sick

A diagnosis with a severe illness often prompts people to write a will but being young and healthy should not stop you from documenting your last wishes.

Life insurance claims statistics show that death can happen at any age. No matter what you own or whether you have a spouse or children or not, you probably care about some of your family members and would rather they inherited what you have without issues.

“Realising that you are now ‘the adult in the room’ can feel confronting. It signals that responsibility has shifted and there may no longer be an older person who automatically organises the family’s affairs,” Mazhura says.

She suggests that if you find drafting a will for the first time – or you are the first in your family to do so and you find it daunting you should remember that you don’t have to solve everything, you just have to be responsible, look for clarity and help your family begin.

I own too little to get a will

Many of us wrongly believe we own too little to write a will.

A will is not just for the wealthy – it is for anyone who wants to protect the people they love, Adele Barnard,  a financial planner and money educator at Sanlam, says in her comments on the Sanlam survey.

“You don’t need multiple properties or a large portfolio. If you have a bank account, a vehicle, insurance policies, retirement savings or people who depend on you, you already have an estate that must be administered when you pass away,” she says.

“Without a valid will, your estate is distributed under intestate succession, which may not reflect your wishes and can create delays, costs and stress. Your legacy isn’t measured by what you own – it’s measured by how well you have protected the people you love. A will is one of the greatest gifts you can leave behind,” Barnard adds.

A lot of young people own digital assets, Harry Joffe, Discovery’s head of legal pointed out at media briefing on wills this week. More than seven million South Africans own crypto investments. They need a will and an executor who knows how to manage and get passwords for those digital assets in order to transfer them to heirs if they die, he says.

Even a modest estate can create real hardship if certain decisions are left unclear, Sankie Morata, the CEO of Sanlam Trust, says in the Sanlam survey.

Start with an audit of what you own and what debts you have and if your estate will have cash or liquidity for all that needs to be paid when you die, he suggests.

When you draw up a will and plan your estate consider who should manage the estate, who should inherit, what happens to any business you own, who should care for minor children, how debts should be settled and how dependants should be protected, he says.

“The value of a will lies in the protection it offers, not in the size of the estate. A properly drafted will reduces conflict, appoints the right people and gives a grieving family a clearer path at the worst possible time,” Morata says.

A will is complicated

The complexity of a will depends on the complexity of what you own and your family circumstances. If your affairs are simple, a simple will should suffice.

When you have children and they are minors, or you care for someone who is unable to look after themselves, you need to name a guardian for them and make arrangements for your assets and money to be used for their care. This may include setting up a testamentary trust or making use of an umbrella trust.

As your estate grows larger you may need to implement measures to save on estate duty and capital gains tax, but modest estates are unlikely to need these as there are estate duty and CGT concessions on death.  

A will does have to be drawn up in a particular way, however, to ensure that it is valid.

Joffe says a will can be invalid for a variety of reasons including if the signature is too far below the attestation clause or the signatures on each page are different. Also it may not be possible to carry out the testator or testatrix’s wishes if the will names a specific property that has since been replaced.

Joffe says a court can be asked to declare an invalid will valid, but the courts are bound to follow the very strict provisions of the Wills Act and court cases are both expensive and delay the winding up of an estate.

A fiduciary practitioner or trust company can check your will for you to ensure it is valid. They will also keep the original safe and your family can be told where they can get the will.

A will is expensive

You may have to pay for a will to be drawn up by a fiduciary expert or lawyer and if you have a lot of assets, including the likes of a business, large investments and/or trusts, this may increase the cost.

In this case, the cost of getting a well-qualified person to draw up an appropriate will is likely to be worth it.

For anyone else there are a number of options. During Wills Week, participating law firms offer free basic wills to anyone who has not had a will before.

At any time of the year, you can get a free will from most trust and estate divisions of banks or life insurance companies as long as you appoint them as the executor of your estate and they can recover the cost of drafting the will from the executor’s fees. These fees are typically charged at the maximum cost set in the Administration of Estates Act, which is 3.5 percent of the estate before VAT.

However, this fee is negotiable.

Joffe says people should be careful of thinking that if they make a family member the executor that they will save on executor’s fees. The administration of estates is complex and if family are not capable of managing the process, they can cause the estate to take much longer to wind up. Read more: Who should be the executor of my estate?

People often complain about how long estates take to wind up, but he says almost every trust or fiduciary business has some complaints because of the complexity, time requirements in the Act and delays at the Masters Offices which are well known.

I don’t have time to write a will

Many people put off writing or completing a will because they believe they don’t have time. Drawing up a will can lead to other financial planning issues, such as needing life insurance or tax planning that can also require more time.

But once you have invested time in a will, and a financial plan, your finances will be much easier to maintain and manage. The time you have invested will be a legacy for your family.

Barnard says a will isn’t only about distributing assets; it protects loved ones, minimises delays and makes sure the wrong person doesn’t inherit.

Ensuring you have a will, your beneficiary nominations are up to date, you have set up any trust that may be required, there will be liquidity in your estate to pay the necessary taxes and you have sufficient life cover are all part of ensuring you have a solid estate plan that will protect those you care about.