In 1993, Neria, a successful 35 year old woman lost her husband Patrick Katsande in a tragic accident. Neria had been happily married to Patrick for 14 years and they had 2 children together. Upon her husband’s death Neria and her children were stripped of their inheritance by her brother in law. Mr Katsande had died without a will. It took years of suffering and a court battle for Neria to finally reclaim what belonged to her and her children.
Granted – the above is my edited version of a story told in one of Zimbabwe’s highest grossing movies of all time. Many people, just like Mr. Katsande, never think about the effects of dying without a will. The family feuds that can arise after the death of a breadwinner can result in deep seated divisions and emotional turmoil. Having a will in place has the effect of reducing in-fighting as families generally tend to respect the last wishes of the deceased. Newly married couples should seek to protect each other by having their wills drafted early on.
In South Africa and other similar countries, the law specifies exactly what happens when a person dies without a will. These sets of laws are known as intestate succession laws – intestate meaning ‘having died without a will. Intestate succession helps to control any disputes between family members but leads to your assets being divided in a manner you might not necessarily agree with.
In short, the current intestate succession laws state that if you are married with no kids then all of your assets go to your spouse. If you are married with ‘descendants’ then your spouse and descendants get an equal share with the provision that your spouse gets at least R125,000. ‘Descendants’ includes kids born out of wedlock and adopted kids. If you don’t have a spouse or descendants then your assets go to your parents.
The trouble with intestate succession is not only the fact that your assets get distributed in a manner you may not agree with but the costs that arise may eat into your assets. Dying is costly and some of the costs include executors’ fees (up to 3.99% of your assets), taxes and the costs of forced sales of your assets. When you draft a will, you get the opportunity to specify who will be responsible for the distribution of your assets and can negotiate their fees down. You also get the opportunity to plan properly for taxes which can turn out to be quite significant.
Free will drafting
There are a number of free will drafting services available. A number of major banks and other financial companies offer will drafting services for free or at a discounted cost. You have to be careful however, as some of these services may require you to appoint them as executors at the maximum possible fee. You may save a few hundred rand in the short term but incur tens of thousands in the long term.
As you plan how finances will work in your marriage, seriously consider drafting your will to ensure that your family is protected financially and emotionally in the event of your passing.