What you need to know about the legal admin of dying...
Here are a few really positive ways to start your day. Brew yourself a delicious coffee. Make your bed. Meditate. Write down the things you’re grateful for. We write this article with the full knowledge that “educate yourself about dying” is probably not high on your morning to-do list. If there are two things people usually avoid like the Bubonic Plague, it’s legal life admin and talking about death. Put those two things together in a blog post title and it’s unlikely we’ll be winning any crowd pleaser awards. But we’ll try to win you over anyway...
Lots of our biggest life moments hold hands with the law. Those moments might be happy and celebratory - like starting a business or getting a new job, bringing our children into the world, buying, renting and selling our first homes. Other life moments are really tough - like losing our jobs, ending our marriages or burying our loved ones. Even though we sign all sorts of contracts before and during each of these life events, we just don’t think there’s enough conversation or education about the legal aspects of any of these life events. This is pretty scary considering that many of us will experience at least a handful of them. The life event we skirt around the most is, ironically, the one that every single person on the planet will experience. And that’s death and the resultant legal administration that comes with it.
Here are some important things you need to know about the legal admin of dying that’ll hopefully inspire you to start getting your “ducks in a row” or, at the very least, encourage your loved ones to start doing so.
One
Every single person who dies in South Africa has an estate that will need to be “wrapped up” one day
Every single person - wealthy or not - will die with an estate. It’s almost like a knee jerk reaction: you die and your estate comes into effect. Even if that estate has a zero or negative value, every South African registered as deceased leaves behind an estate that needs to be “wrapped up”. You might think that “having an estate” is reserved for people with loads of assets and accumulated wealth. That’s part of it, sure. An estate is defined as the sum of your investments, assets and interests, and liabilities. It includes your belongings, your property, your investments and your general stuff - including your debt and creditors. Estate taxes have to be paid on the value of your estate when you die. Wrapping up an estate means that a few boxes are ticked: that your debt is paid, that your estate tax is paid, that your estate is divided up correctly amongst your beneficiaries. (Remember that a beneficiary is any person or entity who will inherit from your estate. A beneficiary can be an actual person or a corporate entity, like a company. Your will is the legal life document where you describe which parts of your estate go to which beneficiary). The thing about dying is that it doesn’t affect just you - let’s face it, you’ll be dead. Those you leave behind are the ones affected by the assets you’ve acquired during your life - your kids included! Your wishes for how these assets are dealt with when you’re six feet under is what a will takes care of.
Two
The same legal administrative steps are followed for every single person who dies in South Africa
When people die, what they leave behind is “wrapped up” by the State and goes through a standardised process to get finalised. This process is the same no matter who you are or what you own. The great thing about anything standardised is that it’s formulaic, which allows us to think ahead and get organised. The Master of the High Court has a very specific list of things they’ll ask for one day when you’re not around anymore. The sooner you’re able to supply those things and the more thoroughly you’ve completed and organised them while you’re still alive, the sooner your estate can get wrapped up. (As a side note, the Master isn’t really a real life person that you can send a Facebook friend request to. It is better to think of the Master as an institution created by legislation and operating from court. Who your Master is will depend on where you were living when you died, but can also be where anyone with an interest in your estate (like an executor) resides, if they make a special request to the Master in that location). At the very top of the list that’ll be asked for by the Master one day is your will. Your will - or your “Last Will and Testament” - is the legal document that says how, when and to whom your assets get dished out when you die. The assets you accumulate in life might include things like money, property, art, cars, businesses. If you have minor children, then your will is the document that will say how and by whom your kids will be looked after in a truly worst case scenario in which both parents aren’t around anymore.
Three
We will all leave behind people who’ll need to handle the legal administration of our passing
The people left behind when you die one day are the people who’ll be dealing with wrapping up your estate. They’ll be walking a tightrope balance between finding space to grieve you whilst also overseeing the wrapping up for your estate. The more organised you are before you die, the easier you make that process for your loved ones. No one wants to be scratching around for laptop passwords or trying to guess who the life insurance policy is with during their moments of grief. We read a story last year about a woman who’d just lost her mother that sums up this point really well. Her mother had left a perfectly organised folder of all the things that her daughter would need to wrap up her estate as easily as possible. Everything. Insurance policies. Her banking information. Her tax information. It also included family recipes. Old letters. Photographs. As this woman navigated both her grief and the administration of her mother’s estate, she said that this folder was almost like a last hug from her mom. A deeply loving gesture that said: “you aren’t alone, I’m here with you and I’ve done my very best to make this horrible life experience a bit easier for you”.
Four
Having a will in place makes legal death admin faster, easier and (sometimes) cheaper
If you have a clear, up-to-date will detailing how you’d like your estate split up one day, it goes a long way in helping the wrapping up of your estate go smoother. Having a will allows you to choose who gets what and how they should use the asset, versus your assets being shared out by the State. For example, you may want your art collection to go to your husband with a clear wish for him to sell the art and put the money towards your kids’ education. When you sign your will, you choose an executor. This is the person who is authorised to act over an estate in terms of “letters of executorship” approved by the Master of the High Court. Said simply, your executor is the person who will wrap up your affairs when you’re dead. In South Africa, if you don't appoint an executor in your will, the Master will appoint one to wrap up your estate. It’s not nice to imagine your loved ones getting scrappy over your stuff, but it can happen. A well written will can help avoid family arguments about who gets what, thereby making the process clearer and less of a hassle. Keeping an updated will allows you to keep a legal record of all of your assets - especially those that your loved ones might not be aware of. It’s also a way to reduce inheritance tax. Done properly and under legal counsel, you can structure your assets in such a way that they don’t become part of your general estate when you die. Optimised tax equals more money for your loved ones. If you die without a will, you die “intestate”. In South Africa, this means that your things will be divided up according to a set formula defined by the Intestate Succession Act, 1987 (Act 81 of 1987). Your wishes about how, when and to whom your assets get given won’t come into the equation. If you’re in a long term partnership but haven’t got married, you can’t be guaranteed that the State will recognise your partner as a beneficiary. Remember, if you die intestate (i.e. without a Will), then the State dolls out your assets according to a set formula in which your relatives get your assets. The only way your partner is guaranteed to get your assets is if you say as much in your Will.
Thinking about the legal administration of dying is confronting and overwhelming. Whether you’re thinking about it in preparation for yourself or educating yourself about it so that you can encourage your loved ones to get their affairs in order, it’s not nice stuff to engage with. If you’ve got this far in the article, we take our hats off to you.
