20 things South Africans get wrong about wills - and what actually happens when you die

September is designated as Wills Month in South Africa, yet many individuals misconstrue the purpose and scope of a will. The primary obstacle to effective estate planning is the widespread misunderstanding surrounding wills. Below are 20 common misconceptions about wills and the actual legal outcomes when a person dies:

1. Leaving a spouse 50% of the estate grants them half of everything. In community of property marriages, this is usually incorrect. Upon death, the surviving spouse automatically inherits 50% of the joint estate, not the entirety from the will. Only the deceased's remaining 50% is subject to the will. If a will ambiguously bequeaths 50% of the estate, it could grant the surviving spouse up to 75% of the total estate, rather than 50%.

2. An ex-spouse does not fall out of a will automatically after a divorce. According to section 2B of the Wills Act, a pre-divorce will is treated as if the ex-spouse predeceased the testator, but only if the will is executed within three months of the divorce. After three months, an unsigned will can still benefit the ex-spouse.

3. A will does not dictate who receives your pension or retirement annuity. These death benefits are governed by the Pension Funds Act and distributed by the fund trustees, not the will.

4. Life insurance and retirement annuities do not always go to your estate. If you have nominated a beneficiary, the death benefit is paid directly to that person, bypassing the will and estate.

5. Owning little or no assets does not exempt you from having a will. An estate comprises more than just property; it includes homes, vehicles, bank accounts, and personal belongings. Guardianship arrangements for minor children also necessitate a will.

6. Leaving everything to minor children is not feasible without proper arrangements. Minors cannot inherit directly and must rely on a testamentary trust or guardian's fund until they reach majority, limiting their access to the inheritance.

7. Family members may have differing recollections of conversations about your wishes. Only a validly executed will can bind an executor to your intentions.

8. An old will is not binding simply because it has been signed. Changes in marital status, births, deaths, or significant asset changes can render an old will legally invalid. Wills should be reviewed after major life events.

9. A handwritten note does not constitute a will. The Wills Act requires a will to be signed by the testator and two competent witnesses on each page. An unwitnessed note cannot be validated through a court application.

10. Cohabitation with a life partner does not automatically provide them with inheritance rights. Under the Intestate Succession Act, a life partner excluded from a will may inherit nothing.

11. An executor cannot start administering the estate immediately after signing the will. Letters of Executorship must be issued by the Master of the High Court before the executor can act, and bank accounts are typically frozen until then.

12. Disinheriting a spouse can lead to legal consequences. A surviving spouse left without adequate provision may have a claim for maintenance against the estate under the Maintenance of Surviving Spouses Act, regardless of what the will states.

13. A second marriage's will does not automatically include children from a first marriage. Without careful planning, often through the establishment of a trust, children from a prior relationship might be unintentionally excluded if the surviving second spouse later inherits everything and alters their will.

14. Mirror wills do not function identically to properly coordinated wills. Two similar wills signed separately are not equivalent to wills specifically drafted to interact correctly, particularly concerning massed estates or preserving a first-dying spouse's intentions after remarriage.

15. Executor's fees are not fixed; they can be negotiated. The Administration of Estates Act sets a maximum tariff of 3.5% of the gross estate value plus 6% on income earned after death, plus VAT. However, the fee is negotiable during the drafting process, not fixed.

16. Free wills offered during Wills Month do not exempt your family from costs. Institutions providing free wills typically require the appointment of an executor. The estate still incurs executor's fees, often at or near the statutory maximum, and the family has less control over the executor and administration process.

17. A will signed overseas is not always straightforward to administer in South Africa. Foreign wills must meet recognized formalities to be valid in South Africa, but administering such wills alongside local assets can introduce delays, translation, and authentication requirements not present with locally drafted wills.

18. Having a will does not automatically streamline the administration of your estate for your family. While a will directs how your assets should be distributed, the process can still be complex, involving court hearings, probate, and potential legal challenges from beneficiaries.

19. A will does not prevent family disputes. Even with a well-drafted will, differing interpretations, claims, or personal relationships among beneficiaries can lead to disputes. Proper estate planning may involve additional measures to mitigate potential conflicts.

20. A will is a living document that requires regular updates. Any significant life event, such as marriage, divorce, births, deaths, or changes in asset ownership, can alter the validity of your will. Regular reviews ensure that your will accurately reflects your current wishes and circumstances.