A will is one of the most important documents you will ever sign. It is your opportunity to ensure that your loved ones are taken care of after your passing and your wishes are fulfilled. However, a valid will is not necessarily an executable will. It is important to consider the requirements for an executable will as they are very different from the requirements for a valid will.
An estate is created at the death of an individual and consists of all property and deemed property. The estate pays the debts owed by the deceased and distributes the balance to the beneficiaries. A deceased estate arises whether a person has a will or not. The gross estate of a deceased includes assets that are the property of the deceased such as houses, investments, shares, royalties, etc. Assets deemed to be the property of the deceased include proceeds from domestic policies, accrual claims by the deceased against the surviving spouse, donatio mortis causa, and more.
It is important to note that an executor’s primary function is not to give effect to the wishes expressed in a valid will, but rather to wind up the estate of the deceased by bringing the financial affairs to an end. This includes presenting an original will to the Master’s office, settling outstanding debt, paying taxes and duties owed, paying the transfer costs of immovable property, and paying the administrative costs associated with the winding up of the estate.
Only once these steps are complete can an executor give effect to the wishes expressed in a valid will, provided they are not impossible to execute, against public policy or illegal. If the executor cannot perform their primary function, the probability of them being able to perform the secondary function, i.e. give effect to the wishes expressed in a valid will, is unlikely.
It is therefore crucial to ensure that your will is executable. Brink, one of our specialists in the fiduciary field, notes that without proper knowledge in drafting a will, things can go wrong. He warns that relying on untrained advisors when preparing a will is a never-ending source of amazement. Examples of court cases relating to executable wills include Estate Late E I Williams and others v Hendricks and another and Osman and others v Nana N.O and another.
To ensure that your will is executable, the following questions must be asked when drafting it:
- Are there any debts to be settled and if so, are there provisions for this?
- Is consideration given to the impact of beneficiary nominations on policies?
- Have maintenance obligations towards children, spouse or ex-spouse (or even elderly parents) been taken into account?
- Have taxes and administrative costs, payable upon death, been provided for?
- Are there trusts or business interests that must be considered when drafting the will?
If these questions cannot be answered, it is likely that the valid will might not be executable.
To avoid family feuds, disappointment and a waste of time and money, it is recommended to appoint a specialist in the fiduciary field. At G&S Insurance Consultants, we have experts who can ensure that your will is executable and that there is sufficient estate liquidity.
Book a meeting with one of our Experts or Contact Us for more information.