By NDUMISO KHUMALO and SIYANDA MAKUNGA
Death is something that is certain, although when we will die is usually very uncertain. It is therefore important to plan for what will happen to your finances, your children and all your belongings when you die. Many people still refuse to discuss or think about this topic, as they believe that they are inviting death.
One way in which to make sure that your wishes are fulfilled after you die is to have a Will drawn up by a person who is experienced in drafting Wills, such as an attorney. A Will carries instructions as to how and to whom your property/assets are to devolve after you die.
WHAT IS ESTATE PLANNING?
Estate planning is formally planning and preparing for what will happen to your financial affairs, your children and your belongings after you die. In the same way that we plan for various occasions in our lives such as marriage, university or retirement, so too it is important that we plan and prepare for the final milestone in our lives – death. By planning for your death, it is you who decides what should happen to your assets and how your children will be provided for. This will also prevent unnecessary arguments between family members as your wishes will be set out in your Will.
EXECUTING A VALID WILL
There are a number of issues which one needs to bear in mind when planning for your death. The most important part of estate planning is being able to decide for yourself what will happen to your assets/property after you die. The only way in which the law will recognise your intentions of what should happen to your estate, is if your intentions/wishes are documented in writing in the form of a Will. Should you fail to prepare a valid Will prior to your death, you will be said to have died intestate, and the laws of intestate succession (and not your wishes) will determine how your estate is divided.
If, however, you leave behind a valid Will, you are considered to have died testate, and your estate will be distributed according to your wishes.
SAFEGUARDING IMPORTANT DOCUMENTATION
When preparing for one’s death, it is very important that any relevant documentation is kept in a safe place. A mistake which is often made by people is that they fail to store their documents in a safe place. Sorting out your important papers is a vital part of estate planning.
Below is a list of documents that may be important after you die:
● Identity document
● Marriage certificate
● Title Deed in respect of immovable property
● Payslips / UIF card
● Bank and policy documents
● Birth certificates of children
● Your Will
These documents can be stored electronically on a computer or other electronic device. This is acceptable, provided that those dealing with your estate afterwards know where to find the documents and how to access the electronic device (passwords etc). Please note that only the original hard copy of your Will will suffice.
FAILURE TO STORE YOUR DOCUMENTS IN A SAFE PLACE COULD RESULT IN:
● Your family having to search for them after you have passed.
● Inability to lodge any claims on your behalf.
● Difficulty in administering your estate.
KEEPING YOUR RECORDS UPDATED
It is vitally important that you keep your records and documents up to date, and to replace any documents which you may have lost or misplaced. It often occurs during our lives that we lose our identity documents, children’s birth certificates, title deeds, policy documents, fund membership agreements, and more.
Always ensure that you take the necessary steps to obtain new copies of any lost document as this will save your family a lot of time and effort after your passing.
NB: It is important that you tell someone that you trust where to find all your important documentation, especially your Will. Should you fail to store your documents securely they may end up in the wrong hands and this could result in unwanted problems.
ESTATE PLANNING DURING A PANDEMIC (COVID 19)
Preparing for death is, of course, even more important during times of life-threatening pandemics, so that you know exactly what will happen to your assets/property in the event of your death. Hence you need to prepare for your death while you still can. It is essential that you have your Will updated. If you do not have one, have a Will prepared for you now, rather than postponing. Remember that your tomorrow is not a certainty.
How can you have a Will drafted during the pandemic? You do not need to be at your lawyer’s office to book an appointment; a phone call can get you there, then the rest will follow. Although it is preferable to see your lawyer in person with all relevant documents, a phone call may suffice, and so you should try to avoid unnecessary visits. In that way you will be protecting yourself and others.
For assistance or advice on Wills or what to do when someone has died, feel free to contact the Rhodes University Law Clinic at the contact details provided below.
Rhodes University Law Clinic helping you
The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to indigent people in most areas of law. The Law Clinic has re-opened its New Street offices during ordinary business hours, and is once again available to those members of the public who qualify for assistance in terms of a means test.
For more detail, please contact:
Rhodes University Law Clinic
41 New Street, Grahamstown
Telephone 046 603 7656
- Ndumiso Khumalo and Siyanda Makunga are attorneys at the Rhodes University Law Clinic.