What will happen if you or your partner pass on?


Shaheeda Hoosein, Director of Conveyencing and Notary at Gwina Attorneys wrote an article on the importance of a will.

What will happen to my family if my partner has to pass on? Will my children have a home to live in? Will I have access to my partners funds? These are the type of uncomfortable and unfortunate thoughts going through the minds of many during these times. Not only may one have to deal with the trauma of a loved one being ill, one is required to determine the ramifications of their possible death, and its effects on one’s family. The Covid 19 pandemic has shown us how delicate life is. The fatality rate in South Africa is growing daily, thus an urgency exists to ensure that your Will is prepared and signed.

The first question to establish is whether a Will has been drafted by the ill spouse. This document will ensure that his assets are distributed according to his wishes on death, and the distribution thereof is not left to our government to decide in what proportion, and who will get his assets. Having a Will allows ones loved ones to have quicker access to your funds and assets, compared to a lengthy process that is required when an estate is wound up intestate ie without a Will. An ill person has the capacity to make a Will if they are 16 years or older, and if they have the mental capacity to appreciate the nature and effect of this act.

A Will allows an executor to be appointed by you, to collect outstanding debts, pay debts, de-activate bank cards, open an estate account, and generally to administer your estate until the assets are finally distributed and the estate is declared closed by the Master of the High Court.

Other benefits of a Will include having the ability to appoint a guardian for one’s minor children whom you will be assured will raise your children well. If there is no Will, a court can take it upon itself to decide who will be appointed as a guardian of your children.

Having a Will can prevent surprises and hurt feelings to loved ones after one’s death. With blended and divorced families, the division of assets can be complicated and upsetting if done according to the Intestate Succession Act. Distribution in terms of this Act may allow for a bitter and divorced spouse, or an in law to inherit assets, which was not the intention of the deceased. Concluding a valid Will can create certainty of who benefits from your estate as efficiently as possible.

The marital regime you have chosen to govern your marriage will also have an effect on how a Will is drafted, and your assets are distributed.

If one was married in Community of Property, all your assets are jointly owned, and on the death of the first dying spouse, this joint estate is wound up and dissolved. The outstanding debts of the joint estate are settled before a half share of the deceased assets are distributed in terms of his Will. The remaining half of the estate is then given to the surviving spouse.

If one has a massed Will, where two or more persons have joined their estates, this massed estate is usually distributed on the death of the first spouse, conferring a limited interest to the surviving spouse.

If the deceased was married out of Community of Property, each spouse owns their own estate and on death, only the deceased spouse’s estate is wound up and distributed.

If the parties were married in terms of an accrual system, the party whose estate has accrued less than that of the other party, has a claim against that estate for a share in the accrued amount.

Drafting a Will can be a complex and the most important document to have to ensure that your assets that you had worked a lifetime for is distributed according to your wishes, and your loved ones are well cared for after your death. We suggest that this document be drafted by a professional to ensure that all the requirements for the validity of the Will are met, and correctly drafted to ensure unnecessary emotional, and costly legal issues arising after your death.

By: Shaheeda Hoosein
Director of Conveyencing and Notary at Gwina Attorneys
Twitter: @Gwinainc