Why the need for a Will?
As South Africa ends its ‘WILL Week’ awareness campaign that began on 13 September 2021, a fiduciary expert from the University of KwaZulu-Natal (UKZN), Thokozani Radebe, has explained the importance for a testator (deceased) to leave a ‘will’ asset that does not have liabilities.
For the campaign, the Department of Justice and Constitutional Development partnered with two law firms called Legal Aid South Africa (LASA) and the Law Society of South Africa (LSSA) to assist anyone from 16years and above to draft their wills from 13-17 September 2021.
Radebe said in an instance where the testator had bequeathed their assets with ‘liabilities,’ there are three things that could happen.
“First, if a testator dies without money, the estate must assemble all your assets (for example, house, car, business etc.) and pay for your liabilities. Secondly, if your child is below 18 years, that asset would go into a paternity trust until your child turns 18. Then thirdly, if your assets are still owing (for example, your house has a bond), and your estate does not have money, therefore, in that instance before everything is separated to beneficiaries, your estate would first cover your liabilities by selling the assets,” Thokozani said.
She advised that in a case where a testator may have a will that has liabilities the bank may seize some of the assets to pay the liabilities.
“Unless your children are willing to take over the bond, a bank where the asset is affixed can agree to a substitution of a debtor. So, your house can go to your children, in acceptance, that they will continue with the bond.” explained Radebe.