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As September celebrates National Wills Week, we have asked our Wills drafter and admitted attorney, Fatima Abrahams, to craft a piece for our readers on ‘The importance of professional Will drafting’.
As daunting as it may seem, drafting your Last Will and Testament is a vital task that will leave you with peace of mind, knowing that your estate will be distributed as per your wishes and not in terms of the laws of intestate succession. Taking the time to carefully think about your Will is beneficial, as among other things, it reduces the risk of family feuds, and you will have the certainty of knowing that your loved ones are taken care of in the manner that you deem fit after your passing.
When preparing to draft your Will there are various factors to consider, these factors include, but are not limited to, the following:
* Your marital status, if you are married, the matrimonial property regime you married in is vitally important, i.e., in community of property or out of community of property with or without the system of accrual and also to consider how this will affect the distribution of your estate. If you are unmarried, divorced, widowed or in a life partnership, it is important to note this in your Will.
*What is the composition of your family and what is the nature of your family relations and dynamics? If you have minor children, nominating a guardian and having a testamentary trust is both recommended and necessary. You may have a child with special needs that will require a special needs trust or a beneficiary whose inheritance will be best kept in a trust. Perhaps you have a blended family and/or other dependants that would not usually inherit in terms of the law of intestate succession.
If you have a loved one living with you on your property, you may want to include a usus, usufruct or habitatio in your Will, in order for them to remain living in your property after your passing
* Considering the contents of your estate and how you would like your assets distributed is
the crux of your Will. One needs to be mindful of where your assets are located in terms of jurisdiction and whether you have offshore assets. With offshore assets, it is to be noted that different countries have different succession laws, and this will affect how your assets are distributed.
* Substitute beneficiaries are necessary, as this ensures that there is an alternative beneficiary in the event that your nominated beneficiary predeceases you, or renounces the benefit due to him or her.
*Nominating your executor, it is imperative to nominate an executor who has extensive experience in the administration of deceased estates, such as Appleton, as this will greatly benefit your beneficiaries. Having your estate administered seamlessly reduces the stress of your beneficiaries during an already difficult period.
* It is key to make sure that your bequests in your Will are clear, unambiguous, legally enforceable and practical. One should, however, avoid ruling from the grave!
Once your Will is signed, there may be notable moments in one’s life that spark the need to update your Will. Marriage, going through the process of divorce, the birth of a child or the passing of a beneficiary, acquiring a new asset or disposing of an asset may prompt you to make necessary changes. So, the regular review and updating of your Will is critically important.
As overwhelming as it may seem, with proper estate planning and due consideration, the Will drafting process can, in fact, be smooth sailing and you will be left with peace of mind, knowing that your Will is in order and your loved ones are well catered for.