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Last will and testament in Cape Town

Book your appointment now to have a basic Will drafted by an Attorney free of charge; if you allow the attorney to be Executor.

No one wants to think of the possibility of their passing away. It is however an eventuality we will all pass away. How we plan for what happens after we pass away will have a huge impact on our loved ones we leave behind.

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Private Lawyer vs Trust Company

Trust companies (including Sanlam, Absa Trust, Standard Trust, Capital Legacy, etc.) operate on a high-volume model. Their biggest selling point is "Estate Preservation"; and to achieve this they usually sell you an insurance policy attached to the Will that covers the legal fees (Executor fees), funeral costs, and immediate cash needs. This is excellent if your estate is cash-poor (i.e., you own a house but have no cash to pay the lawyers). Unlike Sanlam, a private lawyer doesn't come with an insurance policy to pay their own fees. Your estate must have cash in the bank to pay them, or they will have to sell assets (like a car or house) to cover the administration costs.

The company will never die, get sick, or retire (like a lawyer might, unless part of a larger law firm).

The "Call Center" Experience is the biggest complaint. You are a file number, not a person. The people answering the phones are often not the people working on the file. They usually havr staff turnover and the person handling your file might quit halfway through, and a new person has to start from scratch. With a lawyer you can build up a rrlationship.

Maximum Fees will be charged by trust funds unless negotiated upfront (which is rare with free Wills, they almost always charge the maximum statutory fee: 3.5% + VAT of the gross assets.  A private lawyer charges for the Will drafting (usually R1,500–R4,000), but you can negotiate the Executor fee in the Will itself. For a straightforward estate, a lawyer might agree to 2.0% or 2.5%, saving your heirs tens of thousands of Rands.

Because they have thousands of files, they move at the speed of their internal bureaucracy. If the Master’s Office makes a mistake, a corporate clerk sends an email and waits 6 weeks for a reply. A private lawyer drives there and argues with the Master.

If using a private lawyer, make sure that they specialise in deceased estates. Private lawyers often have personal relationships with the Assistant Masters and can move things along faster.

 If there is family drama, a lawyer is better equipped to mediate than a corporate administrator.

Reviews

Before you appoint anybody havee a look at their Google reviews.:

• Capital Legacy
• Standard Trust

Last will and testament - sample

Dying without a will

There are many misconceptions relating to the drafting and executing of Wills. The main one we often hear being : “if I die without a Will my assets will go to the State.” This is of course not true. If you die without a Will your estate will be wound up in terms of the Intestate Succession Act. The Act sets out a set formula in terms of which your Asset’s are divided among your closest relatives. It is true that if no relatives are found your estate devolves upon the Guardians Fund and if, after 30 years it remains unclaimed, it will be forfeited to the State. It is important to note that in terms of the Intestate Succession Act beneficiaries include a Spouse; biological and adopted children; parents or other blood relatives. Life Partners (not married to the deceased) do not automatically qualify to inherit in terms of the Intestate Succession Act. If you are in a long term partnership with someone and want to guarantee that your partner will inherit part of your estate you must make sure this is stipulated in your Will.

Wills must be drafted & signed properly

People also think that electronic versions of Wills saved on their computer and digitally signed by them is sufficient for a Will to be valid. This is not true.

• That the Will must be in writing; either hand written or typed
• The testator must physically sign the Will in pen ; in the presence of two competent witnesses who must also sign the Will.
• There are further rules relating to witnesses, one of the most important being that a witness cannot inherit anything from the Will they are signing.

It is very important for a Will to be drafted and signed properly. It is not a simple process for heirs to approach the High Court for an order directing the Master of the High Court to accept an invalid Will. The Court will need to be satisfied that the document was drafted and executed by the deceased and that the deceased intended it to be his/her Will.

Appointing an executor

When drafting your Will remember that you are under no obligation to appoint a financial institution as executor, it is your choice who the executor will be. Your executor can be any person over 18 years with mental capacity to Act. You may consider appointing a relative together with an Attorney. For practical purposes it is advantageous to appoint an Attorney, who is familiar with the various Acts, the Master’s Office Procedures and the winding up of estates.

If you do not specify an executor in your will, then somebody will need to establish who your next-of-kin are and formalise this in a J192 form (affidavit of particulars of next-of-kin) and your next-of-kin will have to nominate an executor as part of their process of administering your deceased estate.

Example of nominating executor in a will

Common wording by a testator (the person whose will it is) in a last will and testament is: "I nominate, constitute and appoint Jane Elizabeth Doe [replace withe the full name of the person who you want to appoint executor) (Identity Number: 4909095241080 [replace with ID Number of your preferred executor) to be the Executor of my estate."

The will should set out the nominated executor's full name and ID number and explicitly express that the testator wants that person to be executor.

Example of an alternate executor in a will

The testator may die after the executor has already died; for this and other reasons it's a good idea to nominate an alternate executor, to make provision for the possibility that the preferred executor cannot fulfill that role. Example wording:

"I nominate my father, JOHN SMITH, to be the Executor of this my Will (Identity Number 6011115240081). In the event of my father being unwilling or unable to act for whatsoever reason, or once appointed being unwilling or unable to continue to so act, I nominate my sister, JANE JACKSON (Identity Number 9008085240080), as my Executor..

Co-executors in a will

It is also possible to nominate more than one person to act as executor.

Process followed after death

The nominated executor can accept the responsibility to act as executor by completing form J190, acceptance of trust to act as executor; and if the Master of the High Court is happy, then "letters of executorship will be sent back; allowing the executor to begin their role of managing and distributing the estate

Deceased Estate Information

If a relative has died, perhaps without a will, and you are unsure of what do:

• Report deceased estate to the Master online
• Steps to take when your parent dies without a will.
  • Applying for a death certificate
  • J192 form - next-of-kin
  • Nomination to act as executor
• Lawyers in Cape Town specialising in deceased estates.
• Administrators in Cape Town for deceased estates .
• Letter of executorship requirements in South Africa.
  • J192 form - next-of-kin (if no will)
  • Nomination to act as executor (if no will)
  • J190 form assistance
• Administration of deceased estates in South Africa.
• Property transfer cost in a deceased estate.
• Inheritance and child maintenance obligations.
• Intestate Succession Act
• Tracking deceased estates
• Death of a spouse before divorce if finalised

Wills

• How to write a will.
• Example of a last will and testament.
• Get your will drafted for free (by a lawyer).
• List of lawyers that draft wills in Cape Town.
• Consider updating your will when these events occur:
  • when divorcing; to avoid your ex-spouse possibly inheriting everything.
  • death of somebody mentioned in your will,
  • the birth of a child you may want to include in your will,
  • marriages

Connect with a Deceased Estate Expert today

Deceased Estate discussion forum

Note that this is a public forum - exercise caution before acting on info and use at own risk. Anybody may ask and answer, and you don't know what their level of expertise is. No information on this website should be acted on without first consulting with a lawyer to test its validity. Do not share private details here.