When a major life event is about to take place or has occurred, there is often heaps of paperwork that needs to be completed. Changing your will should be one of the most important things on your list.
The type of marriage contract you have chosen – whether it’s in community or out of community of property – has a significant impact on how your estate is handled. It therefore makes sense to draw up a new Will in conjunction with your marriage contract.
- In community When you get married in community of property, you and your spouse own all your assets together, each with a 50% undivided share during the marriage. It basically means that when you pass away, your spouse is entitled to his or her half, and only your half will be awarded in terms of your Will or intestate succession law, if you do not have a Will. Unfortunately the joint liabilities must be paid before any of the two half portions can be awarded, which could leave the surviving spouse in a very difficult position if the deceased person was heavily indebted.
- Out of community If you get married out of community of property, an antenuptial contract will determine how your assets will be divided during marriage. An antenuptial contract gives you much more flexibility when drawing up a Will. The structure of the antenuptial contract allows you to name your own beneficiaries for specific assets and you can also protect personal assets against debt.
Getting a divorce
Changing your Will should be one of the top things on your list when you are getting a divorce. South African law gives you a window period of three months after your divorce in which you can change your Will and remove any provisions that would benefit your former spouse. If you pass away during this period, any provision in it that benefits your former spouse will fall away. However, if you fail to amend your Will within three months after your divorce and pass away, your former spouse will still benefit from the Will.
Mind the pitfalls
It’s essential to review your Will on an annual basis, even if you think there has been no material change in your personal circumstances. Besides life events such as marriage, remarriage and divorce, there are other changes that could impact on your Will – the birth of a child, new legislation or a change in personal finances – to name but a few.
Although there are a number of self-help tools available for people who want to draw up their own Wills, you should be mindful of some potential pitfalls, such as being too vague about heirs, or appointing someone close to you as an executor.
By Liesl Peyper