Willie Fourie, Head of Estate and Trust Services, PSG Wealth.
Many people think a simple, one-page document is all they need to transfer ownership of their worldly possessions to their heirs. Some even go so far as to rely on the pre-printed will forms you can buy at your local stationery shop.
While there is a strong case to be made for keeping things simple and uncomplicated, it is possible to oversimplify and in so doing make life a whole lot more complicated for your heirs.
A well thought out will, drafted by a knowledgeable estate practitioner, can simplify matters and help save a significant amount in estate and other taxes.
Here are some common pitfalls we see, and how to avoid them
1) Don’t use overly complicated wording
The worst possible thing is when heirs dispute the validity of a will. When interpreting a will, our courts look at the ordinary meaning of words and phrases used in the will. Clear, concise language is of the utmost importance to make sure that there can be no doubt about the true intention of the estate owner’s wishes
Limit the use of legal terminology to an absolute minimum, and only to instances in which you or your will drafter have a thorough knowledge of the practical implications and legal consequences. For qualified, professional assistance in ensuring that your will accurately reflects your final wishes, consult a financial adviser who has specialist fiduciary expertise for guidance.
2) Avoid overly complicated structures
A simple but properly drafted will is usually sufficient to ensure a speedy and cost-efficient transfer of assets to your heirs. Local and foreign trusts and companies can also be set up to house assets and make use of the benefits associated with these structures. Be aware, however, of the associated cost of maintaining them in foreign jurisdictions – especially where fees are charged in a foreign currency – as this may quickly negate any savings on estate duty or tax.
3) Don’t become obsessed with tax savings
A mistake we often see in this field is that people become so obsessed with saving on taxes in their estate plan, that they forget to fully take into account the practical needs of their heirs.
4) Don’t create a burden for your executor or trustees
You don’t want to create a burden for your executor or trustees – and ultimately your family – who have to implement and administer the structures you set in place. For example, trusts that are set up to last in perpetuity can be tricky to handle in the face of changing legislation.
5) Allow for flexibility
Think carefully when restricting the movement of assets or the transfer of wealth that could otherwise have benefited your children and grandchildren.
6) Choose your executor carefully
By choosing the executor of your estate with care, you can achieve substantial tax savings in the estate administration process. Selling estate assets during this process can result in a recoupment of tax if the deceased claimed a depreciation allowance on these assets.
7) Your freedom of testation has limits
Freedom of testation means you can leave your assets to whomever you please, but you cannot neglect your duties, or the interest of those who depend on you when doing so. However, remember that claims for maintenance from dependents, a surviving spouse or claims in terms of the accrual system created by the Matrimonial Property Act will take precedence and best be factored into your will to avoid delays and disputes.
8) Ask your children what they want
Consider existing trusts and other estate planning vehicles that your children may already have set up. If they prefer to receive any benefit directly, despite the benefit that a control mechanism can offer, then consider this.
9) Include your will as part of your financial plan
Your will should be included as part of your holistic financial plan and your financial adviser and estate planners should be aware of each other’s work. This can help to avoid costly mistakes and misunderstandings.
10) Don’t put it off
Do not underestimate the impact that an improperly drafted will – or the absence of a will – can have on your family. There are many horror stories about the cost of procrastination. Make an appointment with a recognised and accredited estate practitioner and get it done.