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Making Your Will...
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MGF Attorneys understand the concerns people have about dealing with the law. Over 22 years of representing the interests of ordinary men and women has allowed us to develop a friendly, approachable service.
MGF Attorneys' Will-Making Service
Making a Will need not be complicated. We offer this service for every client and their partner whether married or not and for partners of the same sex. This service can help you safeguard the interests of your family, friends and dependants and you don't even have to visit us! Using our questionnaire, we can draft your Will from the information you provide.
The Wills questionnaire can be completed by either a single person (please give the details under the columns headed 'Yourself'), or by a couple (please complete both columns 'Yourself' and 'Your Partner'). It is important for both partners to make Wills because you might die together. In any event you should provide for what should happen when you both die.
The word 'partners' is used in this document to refer to all partners, whether married or unmarried regardless of gender or sexuality.
What does making a Will involve?
A legally drawn up Will is a written statement of your wishes.
It enables you to make important decisions that affect your family and friends after your death.
Decisions such as:
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Who inherits your estate (i.e. everything you own)? your beneficiaries?
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Who will act as guardians of your children?
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Who carries out your wishes? your executors (and your executors may also act as your trustees if your Will creates a trust).
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Why would you create a trust?
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Which charities, if any, are to benefit from your estate?
All of these issues can be incorporated in a Will. A properly drafted Will can spare your family and friends a lot of unnecessary work and heartache at a time when they are least able to cope with it. It also reduces the possibility of making your Will invalid or contestable. You can alter your Will or cancel it at any time, but we will advise on charges at the relevant time.
Who will carry out my wishes when I die?
Executors are people who administer or execute your affairs and being an executor does not prevent the person from also being a beneficiary of your estate. Husbands and wives or partners can appoint each other as first executors and two (or more) additional executors such as adult sons and daughters or professional people to act as substitute executors in the event of both deaths. Please consider the appointment of your executors with care*. The duties imposed by law on executors and trustees can be time consuming and can lead to personal liability. Mike Forsyth is willing to act as executor of your estate, either solely or with a relative or trusted friend. Even when a Will appoints an executor, a Letter of Executorship must generally be obtained from the Master of the High Court . In addition, Capital Gains Tax and Income Tax returns may need to be filed listing full details of assets. For these reasons executors and trustees nearly always instruct an attorney to deal with the administration of the estate.
* These individuals may also need to act as trustees: for example, where money needs to be held in trusts for children under the age of 18 or where any other type of trust arises under your Will.
What happens if someone dies without making a Will?
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Everything you own will be divided up under fixed rules decided by law, not by you, these are known as Intestacy Rules.
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You leave your relatives and friends with the difficult task of sorting out your affairs.
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One of the most common misconceptions is that if you die without a valid Will all of your estate will automatically go to your surviving partner. This isn't the case. Your partner could even end up with insufficient money to remain in the family home.
The law does not provide for unmarried partners or children who are not biological children of the parents (other than adopted children) and if you have no surviving blood relatives then your estate goes to the State.
What arrangements should I make about my children?
You should consider appointing a legal guardian to look after your children who are under 18. When a parent dies the surviving parent normally becomes the legal guardian. But you may die at the same time in which case it would be wise to appoint another member of your family or a close friend as a legal guardian.
Your trustees have power to pay money to the guardians for the maintenance, education and general welfare of your children.
Please note: Unless the mother appoints him, an unmarried father will not automatically become the guardian of his natural child on the death of the mother.
I don't want to leave anything to my family
You don't have to leave anything to your family in your Will but if you do not make suitable financial provision for members of your immediate family or other people financially dependent on you, they may be able to contest your Will and claim a share of your estate.
Witnessing the Will
There are very strict legal formalities which have to be complied with when you sign your Will. We will give you clear and detailed instructions of those requirements.
Living Wills
This is the name given to a Will which does not deal with matters after a person's death but seeks to control medical treatment before that person's death.
A Living Will may contain a statement or direction about that person's future medical treatment when they are no longer able to communicate the circumstances in which they do not want medical treatment.
In a Living Will you can set out what medical treatment you wish to refuse in what circumstances. However treatment to cause death cannot be directed.
Can I ensure that my partner does not leave the assets inherited by him / her under my Will to someone whom I would not like to inherit those assets?
This can be ensured by giving your partner only a limited interest in your estate. This will mean that both your Will and the administration of your estate will be more complicated and that your estate will have to be held by your trustees upon trust. Examples include giving the right to live in your home to your partner during your partner's lifetime (or perhaps until your partner's (re)marriage); giving your partner the right to the income generated from the remainder of your estate during your partner's lifetime (or until your partner's (re)marriage). This may involve work which falls outside the Wills scheme and is something for which we may have to levy an additional charge.
Assets which may not be covered by your Will
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Death benefits under a pension scheme are usually distributed at the discretion of the pension fund trustees. You should therefore let them know of your wishes. Often, they will require you to complete a nomination form indicating whom you would like to benefit, we would advise you to review your nominations annually.
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Life assurance policies, if written in trust, are payable to the named person(s), whatever your Will may say, we would advise you to check these annually.
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Assets in joint names may pass to the survivor. If you wish to leave your share of jointly-owned assets to someone other than your co-owner, you may need to take steps to divide the ownership of those assets. If, for example, the jointly-owned asset is your home you should have the wording of the title deeds checked. This requires conveyancing work such as endorsing the title deeds. This work falls outside the Wills scheme. MGF Attorneys have expertise in this area should you require this additional service.
Where should I keep my Will?
You can lodge this with your bank or with your attorney or accountant or in a safe in your own home. It is a good idea for your will to be kept safe by a professional adviser with a copy retained by you or a trusted family member. Be sure to notify your family where your will is kept.
When should I change my Will?
You do not need to make a new Will if anyone named in it changes address you can simply leave a note of the new details with your Will. We advise that you should review your Will every two to five years, and especially when there is any major change in your life, such as marriage, separation, divorce, remarriage, or a death in the family.
We are always happy to discuss changes in your Will and will re-write your Will, we will advise on charges at the relevant time.
The Financial Checklist
To assist us in preparing your will we need a list of all of your assets which should include your home, life policies, your savings, car and other effects and at the same time, a similar list of all your liabilities such as mortgage, overdrafts and other debts so as to work out the approximate value of your estate. We have included the checklist as part of the questionnaire.
And Finally, Fees and next steps
Fees are R500 plus VAT for a single SIMPLE will and for a joint will R700 plus VAT. A more complex will require detailed estate planning will be billed out at R1 500 per hour plus VAT and disbursements.
Please print off and complete the questionnaire in black and white print or in colour print giving full forenames and full addresses in block capitals of everyone you wish to mention e.g. Rebecca Ann Windsor not Becky A. Windsor. Your application will be returned if not properly completed.
Return the questionnaire (a pdf form found here) and financial checklist, together with your cheque made payable to 'MGF Attorneys', if appropriate, to MGF Attorneys Wills Department at the address given below.
MGF Attorneys, P O Box 347, Hilton, 3245, KwaZulu Natal, SOUTH AFRICA.
If you are unable to print the questionnaire for any reason, contact us on 033 343 1100 and we will be happy to send you a copy in the post.
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