Keeping your Last Will & Testament up to date should be a regular task completed by everyone in order to properly ensure a person’s latest wishes are properly met.
Changes to personal needs and circumstances happen more often than you think. Before you know it, after a year or two, there could be considerable amendments to take into account that may have a significant impact on your initial wishes.
Some examples of changes to think about when updating your Last Will include:
- the birth of new family members,
- a recent change in marital status in the family,
- the death of an heir, or
- considerations by a testator or beneficiaries to emigrate.
Here are a few important considerations to think about when updating your Last Will & Testament:
1. Check your executor and plan ahead
While conducting regular updates of one’s wishes, it is also very important to appoint an executor who is known and trusted, to deal with affairs in the event of death.
The succession planning of executors is something that many people overlook. The last thing your Will needs is for a stranger to be dealing with your directions and wishes should the appointed executor not survive the testator.
More importantly, one of the executors appointed should be a qualified Chartered Accountant or member of a professional firm so that careful consideration of risks and investments are taken into account.
Along the same lines, we always encourage testators to appoint at least one executor that is independent of family members so that there will always be an objective viewpoint in the execution of duties.
It is a well-known fact that family members are appointed to save on fees when managing financial affairs, but this can come back to negatively affect the resolution of wishes, with lack of an independent, objective viewpoint, as well as lack of experience in the administration process.
2. Consider how emigration affects your wishes
The proper execution of duties outlined in a person’s last wishes is often a complicated process. There are specific procedures laid down which are to be rigidly followed in terms of the Administration of Estates Act.
If either the testator or beneficiary in the last Will and Testament is contemplating emigration, this could have far reaching consequences which affect the Will.
In this event, the testator or beneficiary will need to comply with requirements laid out by the Financial Surveillance Department at the South African Reserve Bank (SARB) at the appropriate time. Applications must be lodged through an authorised dealer of the SARB and any requirements that may be prescribed need to be attended to.
Some complicated formalities which will need to be assessed for a different country include exchange controls and tax concerns. There is also a need to apply for and obtain the necessary Tax Clearances.
3. Check that your executor’s fees are within legal limits and that the Will is valid
It is important to note that there is a tariff of fees outlined by the Master of the High Court (“The Master”), and he has the power to moderate the fees for estate executors. If fees are too high, the Master can ask for formal justification of the fees being charged.
When drawing up a Will, we urge our clients to seek advice and be guided in their thinking, have it signed appropriately so as to comply with provisions of the Wills Act.
4) Keep your Will safe, but accessible to avoid delays
Finally, it is vital to keep an original version of a Will in a safe and accessible place so as not to delay the expeditious reporting and administration of a deceased’s estate.
And remember, let someone who is reliable, know the location of these important documents
Your last Will ensures that your remaining assets are dealt with as you wanted them to be – don’t throw it all away by cutting corners, or not planning carefully.
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