There are certain tasks in life that many people delay as long as possible. Drafting a will is
probably at the top of the list. Nobody enjoys the thought of preparing for their own death.
However, creating a will is a good financial decision which can reduce the burden on your
family upon your death. In order to ensure a smooth transition of assets, your will must be
properly prepared. Let’s review a few of the common mistakes and pitfalls that can occur
when drafting a will.
Vague Language
A will is a legal document which contains specific instructions on how to distribute your assets
upon death. Therefore, it should include very clear and precise instructions. Unfortunately,
many wills are filled with vague language which can lead to confusion among the surviving
parties. This could eventually require an expensive court battle to decipher the will.
An example of vague language would include, “I bestow upon my son, Jacob, all of my money.”
At first glance, this statement appears to be rather clear and concise. However, the language
contained in the statement could easily be challenged in a court of law. The main problem
with the statement is the word, “money.” What money is Jacob’s father referring to? Is the
father simply referring to the money in his wallet on the day of his death? What about the
father’s stock portfolio or bank savings account? “Money” is such a vague term. The best
solution is for Jacob’s father to make a list of the specific items he wishes to bequeath to his
son. For example, the father’s will could stipulate, “I bestow upon my son, Jacob, the balance
of my savings account with Nedbank upon the date of my death.” This is a much better
statement because it specifically mentions the name of the bank and the type of account. In
order to add even more clarity, the will could list the savings account number at Nedbank.
Another misleading statement is, “I bequeath to my children the full value of my estate.” A
better idea would be to specifically list the name of your children. This will avoid any confusion
just in case you have children from another marriage or adopted children. Always remember,
it’s best to be as specific as possible when creating your will.
Equal Distribution of Assets
Another common mistake when drafting a will is dividing your assets into equal percentages
among all heirs. On the surface, this sounds like a good idea because it guarantees that each of
your heirs will receive an equal amount of your estate. However, it can lead to a great deal of
confusion.
For instance, transferring ownership of your house to all four children is probably not a good
idea. Which child is allowed to live in the house? Maybe one of the children wants to sell the
house while the others wish to keep the house. What if the house is turned into a rental
property? Who is responsible for collecting the rent and maintaining the house? These are
just a few examples of potential trouble which will inevitably occur if an asset is divided equally
among all heirs.
In situations involving large assets (like a house or car), the best solution is liquidate the assets
upon death and divide the proceeds equally among your heirs. In the example above, if one of
the children truly wants to live in the house upon your death, the child can simply pay the
other children their fair share of the house. However, all of these items need to be specifically
stated in the will.
Involving Family Members in the Drafting of Your Will
As harmless as it may appear, asking one of your heirs to help draft your will could lead to
trouble down the road. In fact, even the process of an heir serving as a witness to your will
could become a potential legal problem upon your death. If other heirs decided to challenge
the will, you (as a witness to the will) could be disqualified from receiving your inheritance.
This has the capacity to evolve into a lengthy legal battle. Obviously, the best solution is to
refrain from becoming involved in the formation a family member’s will.
Failing to Make Provisions for Minors’ Inheritance
Many parents name their minor children as beneficiaries of various assets. The most common
assets include insurance policies, proceeds from investments and property. This is a perfectly
acceptable strategy as long as the parents establish a trust to hold the inheritance on behalf of
the minors. If you have named your minor children as beneficiaries, it would certainly be in
your best interest to create a trust. If you fail to prepare the proper legal documents, the
inheritance of your minor children will be held by the Guardian’s Fund. This fund is
administered by the Master of the High Court. Legally, the fund can only invest the minors’
inheritance in stable investment vehicles which carry a low interest rate. In the long run, this
may not be the optimum investment strategy for your minor children.
Establishing a trust in your will is a fairly simple procedure. The trust is known as a
testamentary trust. It will ensure that the money you pass on to your minor children will be
specifically used to pay for their needs and upbringing.
Failing to Name Alternate Heirs
Many people fail to name an alternate heir in their will. This is not a problem unless your heir
dies before you do. Most likely, you will name your spouse as the heir to your estate. In
addition to your spouse, it would be beneficial to name an alternate heir (or heirs) in the event
that your spouse predeceases you. If you neglect to list an alternate heir, your executor will
have to refer to the Wills Act for a solution. There is a good chance the Wills Act will not
provide the appropriate solution for your specific situation. In order to avoid any future
conflict, the best course of action is to name at least one alternate heir.
Neglecting to Review Your Will on a Regular Basis
Although each family’s circumstances are different, it’s always a good idea for all families to
review their wills on a periodic basis. In fact, examining your will should become part of your
annual financial review. Your will should definitely be changed each time there is a new
addition to the family or if you purchase a major asset.
In order to obtain the maximum benefit from your will, you might consider obtaining the
services of a qualified attorney. In addition to an attorney, there is a tremendous amount of
free information available on various legal websites.
Although nobody enjoys preparing a will, it’s certainly quite helpful in allowing for a smooth
transition of assets upon your death. It’s the proper way to leave a lasting legacy to your loved
ones.
Checklist for Drafting a Will
A will is a document containing instructions on how to distribute your assets upon death
The will should include very clear and precise instructions
Large assets should be liquidated upon death and distributed equally among all heirs
Heirs to your will should not help you draft the will or act as a witness to the will
If minor children are listed as beneficiaries, a trust should be established
The trust will contain specific instructions on managing the children’s assets
You should name an alternate heir(s) in your will
Your will should be reviewed on an annual basis
The will should be changed to include any new family members or major asset purchase
A qualified legal professional can help prepare your will
