When drafting a Will, certain information is required to ensure that all relevant information is taken into account in the estate planning process and important decisions will need to be made. The Will drafter will need to know your marital status and the details thereof, such as whether the marriage is in community of property or not and if the accrual system applies to your marriage. You may be required to provide a copy of your antenuptial contract or divorce order. This could impact your estate planning and have an impact upon your death and must be taken into consideration.
If you have a preference regarding wishes for your remains, for example if you would like your body to be buried or cremated, it is important to provide for this in your Will. However, take note that if you would like to donate your organs after your passing, this information should rather be included in your letter of wishes or living will. What often happens in practice is that the will is read far too late after death to allow for the donation of organs. To make sure that your wishes are affected regarding organ donation, it would be best to register online for organ donation and to inform your family if upon your death it is your wish to donate some or all of your healthy organs.
It is necessary and helpful to draw up a list of your assets and liabilities at current market values (including any loans). This list should include both your local and offshore assets and liabilities and if you are married, it should indicate which of the assets and liabilities are in the name of your spouse. This will enable the Will drafter to determine whether or not you require an offshore Will and to ensure that all assets and liabilities are taken into account for your estate planning and dealt with correctly in your Will(s).
It is important to provide the details of all of your children, including whether your children are still dependant on you and if any of your children or grandchildren live overseas, and if so, where they live. This information will ensure that the Will drafter is able to provide accordingly for your children in your Will.
If you have minor children, an especially important decision when having your Will drafted is the persons who you would like to appoint as their guardians in the event of your death, this should be included in your Will. Consider in which country the nominated guardians reside and what your relationship with them is. It is important to provide details of an alternative guardian in case your first choice is not able or willing to act as guardian.
One should consider if you would like to make any special bequests of assets to specifically to go to someone. After your death, all the special bequests will be paid out before the expenses and liabilities of the estate are paid and therefore it is important to consider the liquidity in your estate before making any special bequests. If there are not enough cash or liquid assets in the estate to pay the expenses, liabilities and the cash bequests, the executor may be forced to liquidate assets which you never intended to be liquidated, bring offshore assets back onshore to pay such bequests or have the residuary heir pay into the estate an amount equal to the cash shortage. The details of the people to whom you bequeath the residue of your estate, which is what is left of your estate after all the special bequests, expenses and liabilities have been paid, should be provided as well as an alternative if the original heir is not able to benefit.
In this day and age, something that cannot be overlooked when planning your estate is your social media accounts, cloud storage and digital assets. Ask yourself who you would like to have access to your social media accounts, cloud storage and digital assets after your death and provide the details of those persons. For more information regarding the fiduciary considerations of digital assets and social media accounts refer to the following articles- What Happens to Your Social Media Accounts When You Pass Away? and The Latest Digital Phenomenon: NFTS and Important Considerations and the attachment below regarding Social Media Assets.
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If you are the trustee, founder, or beneficiary of any trusts it is important to provide such details to your Will drafter and, if possible, a copy of the Letters of Authority of such trust. Let the Will drafter know if you have powers in terms of the trust deed to appoint a succeeding trustee to yourself in your Will (if you are trustee thereto). If you do, you should provide the details of the succeeding trustee you so wish to appoint in your place after your death.
A decision to be made as part of the will drafting process is the decision of who you would like to nominate as the executor of your estate. There are certain duties and responsibilities that come with the role of executor. Keep in mind that after your death, your family and friends may be mourning your loss for a long time, and you should consider if the person who you have chosen as executor will be able to take on the task during this period of mourning. Another option would be to appoint more than one executor, whereby one could be a company specialising in executorship who will take on all the administration of the estate, or such a company could be appointed as sole executor as well. Fidelis Vox as a team are specialized in executorship and the administration of deceased estates.
A well drafted Will could mean the difference between your family receiving your estate within a year after your death, versus a few years or more. Keep in mind that your will is put in place not only to affect your wishes, but also to provide for and protect your family and the heirs to your estate. The Fidelis Vox team, collectively, have more than 25 years’ experience in rendering fiduciary and estate planning services including the drafting of wills. If you have any enquiries, contact Tamryn at tamryn@fidelisvox.co.za for more information.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)