National Wills Week: Here's everything you need to know

More than 70% of South Africans die without a will in place, according to figures from the Financial Services Sector Conduct Authority, cited in a Liberty report.

Despite the many campaigns encouraging South Africans to get their affairs in order, a large number of people still don't have a will. One of the reasons is the misconceptions around wills, including the belief that wills are only for the wealthy, people who have accumulated significant assets, or those who have reached a certain age.

National Wills Week runs from 14 to 18 September. The campaign, a partnership between the Department of Justice and Constitutional Development, the Law Society of South Africa and attorneys accross the country, volunteer their time to draft a basic will for any member of the public, free of charge.

Knowledge is power, and having a valid will gives you control of your legacy, ensuring your assets are distributed according to your wishes once you die.

East Coast Radio caught up with Law Society of South Africa (LSSA) CEO Charlene Louw to unpack some of the common misconceptions about wills and answer some of the most frequently asked questions.

ECR: What can South Africans expect when visiting a participating law firm?

LSSA: When you approach a participating firm, expect a proper consultation, not a form to fill in and forget. The attorney will sit with you, explain why a valid will matters, ask about your family and what you own, and talk you through your options: who inherits, who your executor should be, who should guard your children if something happens to you. They will then draft a basic will and make sure it is signed correctly, in front of the right witnesses, so that it is legally valid. What Wills Week does not cover is amending or redrafting a will you already have. That falls outside the free service, and firms will usually quote you separately for that.

ECR: Why is it important to have a valid will, and can you address the common misconception that you only need a will if you own significant assets?

LSSA: A will is not about how much you own. It is about making sure the people you love are protected and provided for after you are gone, and that your own wishes decide what happens to what you leave behind, not a formula in an Act of Parliament.

Die without a valid will, and the Intestate Succession Act takes over. It follows a fixed order of family relationships. It does not know that you wanted your niece to have your car, or that you wanted a trusted friend, rather than a distant relative, to raise your children. And if you are in a long-term relationship, but never married, that Act cannot simply assume your partner shares your life.

The courts have extended some protection to long-term life partners in recent years, but your partner would still have to prove it, possibly against resistance from your own family, and that is a hard and costly thing to be arguing at the Master's Office while grieving. A will removes the argument entirely.

So the idea that a will is only for the wealthy is one of the most costly misconceptions in South Africa. If you have a bank account, a car, a policy, a home, or minor children who need a guardian, you need a will. It protects your family, not just your property.

ECR: Where can people find a list of law firms participating in Wills Week?

LSSA: The LSSA publishes a directory of participating firms on our website, www.lssa.org.za, in the run-up to and during Wills Week. I would also encourage people to watch Legal Aid South Africa's channels and check with their local Master's Office, since this is a joint campaign, or simply phone a law firm near them and ask whether they are taking part

ECR: How often should a will be reviewed or updated and what are some of the things people can specify in their will, beyond simply saying who should inherit their assets?

LSSA: Review your will every two to three years as a general rule, but certain events should send you back to your attorney sooner: marriage, divorce, the birth of a child, the death of an executor or guardian you named, buying property, starting a business, or a significant change in your finances.

Divorce is worth flagging specifically, because very few people know this. The law gives you a three-month window after a divorce to update your will. If you die within that window without having done so, your ex-spouse is treated as if they had died before you, for the purposes of an old will. But once those three months pass, and you still have not updated it, your ex-spouse inherits exactly as the old will says. That clock starts running the day your divorce is finalised, whether you are thinking about it or not.

Beyond naming your heirs, a will lets you do far more. You can appoint an executor, and a guardian for minor children. You can set up a trust so that young beneficiaries are looked after by trustees you choose, rather than having their inheritance sit in the Guardian's Fund until they turn 18.

You can leave specific items, a ring, a set of tools, a vehicle, to a particular person rather than lumping everything into one pot. You can record your funeral wishes. You can even fix your executor's fee in the will itself, which can save your estate a great deal of money later

ECR: Are there any eligibility requirements for people who want to have their wills drafted for free?

LSSA: No. There is no means test and no income threshold. Wills Week is open to any member of the public who wants a will. The one limit is on the service, not the person: it covers a new, basic will. If your affairs are complicated, a business, a trust, assets in more than one country, a complex blended family, the attorney may tell you that you need a fuller consultation, which could carry a fee outside of Wills Week. But for the great majority of South Africans who simply need a straightforward will, there is nothing standing in your way.

ECR: What should people know about the phrase “free will”? Are there circumstances where costs could arise later?

LSSA: ‘Free’ refers to the drafting of the will itself during Wills Week. It does not mean every cost linked to that will, for the rest of your life, is free. The clearest example is the executor's fee. If the firm, or a bank or insurer offering free wills the rest of the year, names itself as executor in the will it drafts for you, that appointment allows it to charge the maximum statutory executor's fee, currently up to 3.5% of the gross value of your estate plus VAT, when you die. On a sizeable estate, that can run into hundreds of thousands of rand. It is not hidden, it is written into the will you sign, but people do not always read that clause as carefully as they should, and the word ‘free’ can create a false sense that nothing further will ever be charged.

My advice is simple: read every clause before you sign, ask directly who is named as executor and what they are entitled to charge, and never assume free drafting means a free administration process later.

ECR: If several firms are offering free wills, what should a person consider when deciding which firm to use? How can members of the public verify that the person drafting their will is a legitimate legal practitioner? Should people look for a particular qualification, accreditation or registration when choosing the lawyer who drafts their will?

LSSA: Choose on trust and convenience, not on marketing. Look at firms close to home or work, ask people you trust for a recommendation, and do not be shy to ask the attorney a few questions before you commit: how long they have practised, whether they focus on wills and estates, and who will store your original will and on what terms.

Verifying that you are dealing with a legitimate legal practitioner is straightforward, and something every member of the public should do, Wills Week or not. Every practising attorney in South Africa must be registered with the Legal Practice Council, the profession's statutory regulator, and if they hold money on your behalf, they must also hold a current Fidelity Fund Certificate. You can contact the LPC's provincial office, or the LSSA, to confirm that a practitioner is on the roll and holds a valid certificate. I would strongly encourage people to make that call, because it is also what stands between you and the Legal Practitioners' Fidelity Fund if anything ever goes wrong with money held in trust for you. There is no shortcut qualification to look for beyond this: registration with the LPC, and a valid Fidelity Fund Certificate where money is involved, is the mark of a legitimate practitioner.

ECR: Once the will has been drafted, should a person keep a copy of their will at home even if the original is held by the attorney? If the law firm keeps the original will, does the client have to pay a storage or annual administration fee?

LSSA: Yes, always keep a copy. The original is the only version the Master of the High Court will accept to open the estate, so it usually makes sense to leave that original with the attorney in safe custody. But you, your executor, and at least one trusted family member should each know exactly where that original is, and you should hold a signed copy for your own reference.

Most attorneys' firms store an original will free of charge for as long as they remain its custodian, precisely because they hope to be instructed to assist with the estate one day. It is still worth asking the question directly and getting the answer in writing, because arrangements differ between firms and institutions, and you do not want a surprise storage bill turning up years later.

ECR: If the will was drafted for free, can the firm charge the family for retrieving or administering the will after the person dies?

LSSA: Retrieving the will itself, simply producing the document, should not carry a charge. Administering the estate is a different matter, and is almost always separate, paid work, whether or not the will was drafted for free. If the firm was named as executor, it is entitled to charge the executor's fee allowed by law, or the fee recorded in the will, for winding up the estate: reporting to the Master, gathering assets, paying debts, and distributing the inheritance. Families should not be caught off guard by this. It has nothing to do with Wills Week being free, and everything to do with how estate administration is normally charged in South Africa.

ECR: What happens if the law firm that drafted and stored your will closes down, merges with another firm or the attorney retires?

LSSA: Attorneys have professional obligations to safeguard client records, including wills, even once they stop practising. When a firm closes or an attorney retires, arrangements must be made for files held in safe custody to be transferred, either to a successor practice, another attorney, or otherwise kept safe and traceable through the Legal Practice Council. A merger is usually simpler, since the newly combined firm typically continues to hold what the old firm held.

That said, I would not leave this to chance. If you hear that your attorney is retiring, closing the practice, or merging with another firm, make a quick call to confirm where your will now lives, and update your own records.

ECR: How can someone make sure their family will still be able to locate the original will years or even decades later?

LSSA: Tell people, in more than one place. Tell your executor and your closest family member exactly which firm holds your original will, and keep that detail with your other important papers, not tucked away where no one else knows to look. Keep a signed copy for yourself, and update your note whenever the will moves, for instance if you change attorneys.

It is also worth knowing that the Master of the High Court's office can be approached to search its own records for a registered will, and the profession's own bodies can help trace a firm that has since closed. But none of that replaces good, old-fashioned communication while you are alive. The best safeguard is simply making sure more than one person you trust knows exactly where to look.

ECR: Many banks offer free will-drafting services throughout the year. Is there any particular advantage or disadvantage to having your will drafted through a bank rather than a law firm?

The advantage is convenience, a bank branch is available all year round, not only during Wills Week. The disadvantage is that banks, like other institutions offering free wills, generally offer that service because the will names them as executor, which entitles them to charge the executor's fee on your estate when you die.

That is not automatically a bad outcome. A bank or trust company can do a perfectly competent job of administering an estate. But go in with your eyes open. A law firm carries exactly the same incentive if it names itself as executor, so the real distinction is not bank versus law firm, it is whether you have thought carefully about who you want as executor, and what they are entitled to charge, whoever drafted the will.

ECR: Are there costs associated with appointing a bank or another institution as executor when the person dies?

LSSA: Yes. Whoever is appointed executor, a bank, a trust company, a law firm, or an individual, is entitled to charge for winding up the estate, up to the maximum allowed by law: currently 3.5% of the gross value of the estate's assets plus VAT, and 6% on income the estate earns after death, unless your will fixes a different rate. Banks and other institutional executors typically charge at or close to that statutory maximum. On a modest estate that might feel manageable; on a larger one it adds up to a significant sum, so it is worth knowing the figure in advance rather than discovering it afterwards.

ECR: Should people compare the executor fees and other estate-administration costs before choosing where to have their will drafted?

LSSA: AYes, absolutely, and very few people do. The executor's fee is often the single largest cost your estate will face, larger than the cost of drafting the will itself, free or not. Before you sign anything, ask directly who is named as executor, what they charge, and whether that fee is negotiable. It usually is. Section 51 of the Administration of Estates Act allows your will to fix the executor's remuneration, so this is something you can settle, in writing, when you make your will, rather than leaving your family to negotiate, or simply accept the maximum, after you are gone.

ECR: What documents or information should people have ready when they go to have their will drafted?

LSSA: Bring your identity document, and the full names and ID numbers of your spouse, your children and anyone else you want to include. If you are married, bring your marriage certificate and, if you signed one, your antenuptial contract, because whether you are married in or out of community of property affects what you can leave and to whom. Bring a simple list of what you own, property, vehicles, bank and investment accounts, retirement funds, business interests, and a rough idea of what you owe. If you already have a will, bring a copy, since your new one should say clearly that it revokes the old.

ECR: What information should people have about their beneficiaries, particularly if they want to leave assets to children?

LSSA: You will need the full names, dates of birth and ID numbers of your beneficiaries, and for minor children, the same detail for the guardian you want to appoint. Think, too, about how you want a child's inheritance to be managed. Leave money to a minor with no further instruction, and it is paid into the Guardian's Fund, administered by the Master, until they turn 18, with the guardian having to apply to the Fund for release of money as it is needed. Many parents prefer to set up a testamentary trust in their will instead, with trustees they choose, which can hold and manage the inheritance more flexibly, and release it only once a child reaches an age of your choosing, 18, 21, or later. It is worth deciding which approach you want before you sit down with your attorney.

ECR: Are there any other important decisions people should think about before meeting with a legal practitioner, such as who they would like to appoint as executor or guardian of their minor children?

LSSA: Yes, and I would encourage people to think about these before their appointment, not during it, because they are personal decisions, often the ones people find hardest. Decide who you trust as your executor, and have a backup in mind in case that person cannot serve. If you have minor children, decide who should raise them if something happens to you, and please have that conversation with the person first. Do not surprise them in a document. Think about whether there are specific items you want to leave to specific people, and whether there is anyone you need to exclude, and why, since that can matter later if the will is ever challenged. None of this needs to be perfectly settled on the day, a good attorney will talk it through with you, but arriving with some idea of your answers makes for a far smoother consultation.

ECR: What is your advice to someone who plans to take advantage of Wills Week?

LSSA: Go, this week. Do not let it become next year's good intention. Bring your ID, a rough list of what you own, and a decision, even a first-draft decision, about your executor and, if you have children, their guardian. Ask questions while you are there: who is being named as executor, what that will mean for your estate later, and where the original will be kept.

Having no will at all is the single most common mistake I see, and it is entirely avoidable. A basic will, drafted this week, free of charge, by a properly regulated attorney, is infinitely better than no will at all, and it can always be reviewed and refined as your life changes. The hardest part is simply starting, and Wills Week takes away every excuse not to.

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