What is a Will?

A Will is a written document whereby a person directs how their estate should be distributed upon their demise. For a Will to be valid there are formalities that must be met. Any person over the age of 16 years and mentally capable can draw up a Will. The Will must be signed by the testator – refereeing to the person whose Will is being drawn up – in the presence of two competent witness. Witnesses should also be over the age of 16 years. It is important to note that no person benefiting from the Will is allowed to witness the Will. Even an executor cannot be a witness to the Will as the Executor is appointed to ensure that the directions contained in the Will is properly carried out. Each page of the Will must be signed by the testator and witnesses must sign on each page of the Will. The witnesses must attest to the signature of the testator on the Will in the presence of the testator. Furthermore, the Will must be dated, and each page should be numbered. Lastly, every page of the will should be readable.

Dealing with the Deceased Estate

What must be done when a person with a Will passes away?

First, the entire estate of a deceased person is put on hold until the Master of the High Court has authorised the nominated Executor under the Will to act on behalf of the estate. The first part of the process is, therefore, to report the estate to the Master’s office. Reporting Documents are required to be prepared and signed by the nominated Executor in the Will, these documents are:

• death notice
• inventory
• next-of-kin-affidavit
• Acceptance of Trust as Executor letter

Once the reporting documents have been lodged at the Master’s office – Letters of Executorship will be issued. Once this letter has been issued the Executor of the deceased estate can now deal with estate to the extent contained in the Will, for example, the Executor will open an estate bank account. There are further steps in the process before the estate is eventually finalised:

• The estate must be advertised in the Government Gazette and local newspaper. This allows creditors to submit claims against the estate.
• Thereafter, a liquidation and distribution account (L&D) will be drafted reflecting all the assets and liabilities in the deceased estate. The L&D account will then be submitted to the Master’s office for approval.
• The L&D account is then advertised in the Government Gazette and local newspaper.
• if no objections are raised, the Executor may then proceed to distribute the estate to the heirs in accordance with Will.

For assistance with the drafting of Wills, winding up deceased estates, Letters of Executorship or Deceased Estate property transfers email executors@siyatec.co.za.

Author: Wafiq Davids (B SocSci, LL.B.)
Attorney, Notary, Conveyancer and Legal Consultant at Siyatec Executors

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