It is often said: “There are only two certainties in life: Death and Taxes.”
However, journalist and writer Ambrose Bierce (1842 – 1914), placed a further nuance to the above saying in making the following retort: “Death is not the end. There remains the litigation over the estate.”
What creates litigation in the case of death is the uncertainty of the deceased’s wishes. It then follows that by making a proper and valid Will, a deceased ensures that his assets are disposed of in accordance with his wishes after death. This privilege of the ‘freedom of testation’ will be secured if an Estates Attorney ensures that the Will is legally valid and complies with the Testator’s wishes. Often a Will is invalid because the person who drafts it does not have the necessary legal knowledge to ensure that the requirements of the law are met.
If a person dies without leaving a valid Will, the assets will be distributed according to the provisions of the Intestate Succession Act. Although the provisions of this Act are generally fair, it may come to pass that:-
- Assets may not be left to the person of the Testator’s choice.
- There can be extra and unnecessary costs incurred.
- There can be unhappiness and conflict among members of the deceased’s family because there are no clear instructions on how to distribute the assets.
- It can take a longer time to have an Executor appointed and may not have been someone whom the deceased would have chosen.
Some people have assets in a foreign country or in different countries. It is possible to have one Will which deals with a person’s worldwide estate. However, succession law and the procedures which have to be followed with regard to estate administration differ from country to country, and it is therefore recommended that a person has a separate Will drawn by an expert in the relevant law of each country where he or she has assets.
What is vitally important is that a person should take steps to ensure that there is sufficient liquidity in the estate to provide for debt and for the ongoing maintenance of the person’s family. Failure to do so may result in the family home and/or other assets having to be sold. Insurance products are a good way of bringing extra cash into the estate for this purpose. However, it is also important to have a financial plan, both to give the reassurance that a Testator will be able to provide for the obligations of the estate, and to minimize any estate duty liability that may arise upon death.
Both certified financial planners and professional persons specializing in the preparation of Wills and estate planning can assist in this regard. Proper planning could furthermore assist in the calculation of estate duty and capital gains tax liability and to ensure that such liability is minimized.
With the execution of a valid and succinct Will, one would avoid Ambrose Bierce’s comical retort on litigation after death.
Text supplied by Cris Riego de Dios, STBB