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"I, being of sound mind, make the following gifts. To my beautiful wife, I leave my house, my Manhattan apartment, and R10m in cash. To my hardworking son, I leave my Lexus and R8m in cash. To my amazing daughter, I leave my Jaguar and R8m in cash.
"And to my brother, who always told me in no uncertain terms that 'health' is so much more important than 'wealth', I leave my exercise bike and treadmill."
Whether or not you're planning to have the last laugh, it's crucial that you have a will in place, as once you've 'kicked the bucket', you won't be in a position to decide who gets what.
There may be a few questions you have about how it all works. Here are the answers to some of the more popular questions we get asked about wills and estate administration.
What happens if I don't have a will in place?
I have a will, but it was drafted many years ago. Would it still be valid?
Can I draft my own will?
I want to make changes to my will. How do I do this?
Should my spouse and I have a joint will?
If drafted correctly, and massing (a type of merging of estates) occurs, a surviving spouse cannot unilaterally amend the contents of the will in relation to the massed estate. This inevitably results in protecting the entitlement of the original heirs in terms of the joint will.
However, a joint will has its disadvantages. It is inflexible after the death of the one spouse and does not cater for a change in circumstances. If the surviving spouse needs to sell property that is ultimately bequeathed to other heirs in the joint will, he or she may be unable to sell this property, resulting in a financial crisis for him or her.
Who should I appoint as my executor and can I agree on an executor’s fee upfront?
The administration of a deceased estate can be complicated and require a lot of work. For this reason, many people appoint a professional executor to act alongside their family members.
An executor may charge up to 3.5% of the value of the gross assets of the estate, as well as a commission of 6% on all income collected after death to the date of wrapping up the estate. However, in most instances, this fee is negotiated and can be agreed upon upfront.
I have a valid will. What would happen when I die?
READ MORE: Death and taxes - Situs explained
I have assets offshore. Do I need a separate will to deal with these assets?
If you have a separate will for your offshore assets, your offshore estate would essentially be wrapped up independently from your South African estate, saving your estate time and money.
In addition, if you have immovable property abroad, it is almost always advisable to have a will dealing with the immovable property.
For example: A South African individual owns property in the UK. A valid worldwide South African will would be recognised in the UK. However, in accordance with private international law, property situated in the UK will pass in accordance with UK law.
So, in this example, many practitioners would argue that best practice is either to have a separate UK will or at least to take legal advice in the UK to check whether the provisions contained in a worldwide will would work, and if the dispositions are efficient for UK inheritance tax purposes.
READ MORE: Moving your assets and funds offshore – what are the options?
What is a probate and when is it needed?
I have left my offshore assets to my children, who live in SA. Can they keep them abroad?
About the authors
Rene van Zyl
Joint-head, Investec Tax & Fiduciary
Rene completed her law degree at the University of Stellenbosch and is an Admitted Attorney of the High Court of South Africa. After completing her articles in Cape Town, she joined a multinational offshore trust company, gaining extensive experience in global estate planning and structuring for high net worth individuals, while obtaining her H-dip Tax through Thomas Jefferson School of Law in San Diego, California. Rene was responsible for local and offshore products and solutions at FNB Fiduciary before joining Investec Wealth and Investment as a Tax & Fiduciary specialist in July 2017. Rene has been instrumental in building the Tax and Fiduciary offering for Investec during the last two years, and she was the first founding member of the team. She was also the representative for Digital Assets in South Africa for STEP. She was rated in the Chambers HNW 2019 for professional advisors. Every year they carry out thousands of in-depth interviews with clients in order to assess the reputations and expertise of business lawyers worldwide. The qualities they look for (and which determine rankings) include technical legal ability, professional conduct, client service, commercial awareness/astuteness, diligence, commitment, and other qualities most valued by the client.
Joint-head, Investec Tax & Fiduciary
Lizzie is an admitted attorney, currently busy with her Masters in Taxation. She specialises in tax and cross-border planning and structuring. Lizzie has vast experience in the drafting of local and offshore wills, estate and succession planning, trust and company law, local and offshore trust and company administration, exchange control regulations, tax law and opinions, as well as cross-border structuring and planning. Before joining Investec, Lizzie worked as an associate at a global law firm specialising in tax and cross-border planning, and as a Client Relationship Manager in trust and fiduciary services.