The Importance of Making a Will
“In this world nothing can be said to be certain, except death and taxes”
(Benjamin Franklin)
Why make a will? This question is frequently asked by clients and the importance for all persons, young and old in making a will cannot be overstated.
The main advantage of making a will is that it allows a person to clearly set out what is to happen to his or her property after death.
If you die without making a will then, in legal terms, you are said to have died intestate and it will be left to the State (under the rules of intestacy) to dictate how and to whom your estate (including all property, money and possessions) is to be allocated. This might not necessarily coincide with your wishes regarding the distribution of your estate. For example, where only your spouse or civil partner survives the intestate deceased he or she is entitled to the entire of the deceased’s estate. Where a spouse or civil partner and children survive, the surviving spouse of civil partner is entitled to two thirds of the estate with the remaining one third divided amongst the children.
There are an increasing number of couples who are not married. If you have lived with your partner for at least 5 years, or 2 years if you have a child together, you are called qualifying co-habitants, and your partner would be obliged to apply to Court for provision to be made out of your net estate within 6 months of the date of the grant of representation being taken out in your estate. The Court has discretion on whether or not to grant an Order making provision for your partner. It is important to be aware that where a cohabitant dies intestate the surviving cohabitant has no right to the estate of the deceased. Because the surviving cohabitant does not have any automatic entitlement to a share of the deceased’s estate it is of vital importance for persons in such circumstance to execute wills setting out how their estate is to be distributed.
Another clear advantage of making a will is that you can choose who you wish to handle your affairs on death. These persons are referred to as your executors. In intestacy situation there is no control over who handles your estate and same is determined by the Succession Act, 1965.
Making a will is not something that should be rushed or left to the last minute. It should be given serious thought and planned for. Making a will provides the comfort of knowing that when you are gone your wishes will be carried out.