Making a Will? Avoid these 6 common pitfalls

When it comes to wills, the worst thing is not having one at all. And with National Wills Week offering all South Africans the opportunity to get their will drawn up free of charge, there really is no excuse for putting off this important task.

But almost as bad as having no will, is having one that fails to make your wishes clear. Here are six pitfalls to avoid when making your will:

1. Making a joint will

If this sounds like a good idea for you and your spouse, you may want to think again. While it’s certainly convenient to have a joint will if you intend to leave everything to each other, with the children inheriting after you both die, problems can arise later on. Because, the will cannot be changed after one of you dies. To do so would require agreement from the deceased party, which is clearly not possible.

Imagine a scenario where the surviving spouse remarries, or enters into a new long-term relationship. If the original joint will stipulates that assets will go to the children of that marriage after both parents die, it will not be possible to alter the will to make provision for a new partner, or step children.

2. Not getting the will properly witnessed

In order to be legal, each page of the will needs to be signed by yourself, along with two witnesses, all of whom should be together at the time of signing. Neither of the two witnesses may be beneficiaries of your will. So you can’t ask your spouse or grown up children to sign as witnesses if you are leaving any cash or possessions to them.

Contrary to what you may believe, it is not a legal requirement to sign in black ink. It is also not necessary for the witnesses to read through the will before signing. They are merely witnessing that you did, in fact, sign the will.

3. Keeping your will in a safe place and not telling anyone where it is

For safety’s sake, many people hide their will. While this may prevent the will being removed or destroyed without your permission, it’s not helpful if your loved ones can’t find it when the time comes.

If you store your Will in a safe or locked filing cabinet that requires a combination, password or key, be sure to share that information with someone you trust. If you have your will drawn up by an attorney or trust company, they usually offer storage facilities in their vault. This is the safest option as the document is protected from theft, fire and damp.

4. Not making provision for contingent beneficiaries if you and your family all die at once

Although it’s unusual, there have been cases where entire families perish together, e.g. in a car accident or plane crash. Perhaps you feel that you don’t care what happens to your possessions if all your loved ones are gone. But do you really want to leave your assets to the state? Because that is what can happen if there are no legal heirs whatsoever.

Your attorney will advise the correct wording that makes provision for contingent beneficiaries (e.g. friends, distant cousins or charitable organisations) to inherit if the primary beneficiaries pass away before they are able to inherit their share.

5. Assuming step children will automatically inherit

Step children and God children are among those who are excluded from inheriting anything, unless they are specifically named in your will. Avoid vague wording such as, ‘I wish for my assets to be shared equally among my children’. Name each child or grandchild specifically, and include ID numbers if there is any doubt about who you are referring to.

If you are leaving cash or possessions to a charitable organisation like Tafta, be sure to use the full name and address: Tafta (The Association for the Aged), 80 Samora Machel Street, Durban 4001.

6. Choosing the wrong executor

In theory, anyone can administer a will. But it can be a complex, time-consuming and frustrating process. Your executor is responsible for obtaining the correct documents and lodging them with the court, filing tax returns, paying bills, etc. So you need someone who is not only trustworthy, but energetic and patient. Especially if there are demanding or quarrelsome beneficiaries who need to managed with a firm hand.

If you don’t have a grown up son or daughter who fits the bill, consider naming a trust company or firm of attorneys to be your executors. This also helps you avoid the pitfall of naming an executor who dies before you do.

If you do choose an individual, it’s a good idea to nominate a co-executor to help them. Be sure to choose co-executors who get along with each other. Out of courtesy, you should ask permission before naming someone as an executor of your will. There may be reasons why they prefer not to act for you.