Our glossary of Will terms
Beneficiary
A beneficiary is the person or entity who inherits from an estate. A beneficiary can be an actual person or a corporate entity, like a company. Either way, a beneficiary must be competent in order to inherit so much as a dime. A minor child can be a beneficiary, but can’t enjoy this benefit without the administrative assistance of a legal guardian.
estate
Your estate is the sum of your investments, assets and interests. It includes your belongings, your property, your investments, your general stuff. Estate taxes have to be paid on the value of your estate when you die.
Estate planning
This is the process of figuring out and managing how your assets will be divvied up to your beneficiaries when you die.
Executor
An executor 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. If you don't appoint an executor in your Will, the Master will appoint one to wrap up your estate. You should appoint someone you trust to be your executor. This could be a loved one or an attorney, but doesn’t have to be. Your accountant, a distant relative or friend can also act as the executor. Whoever you appoint to be your executor needs to accept this nomination. Executorship is a big deal and your executor needs to actively take on the responsibility.
Intestate
This happens when someone dies without a Will. We speak about someone dying intestate. In South Africa, if you die without a Will, your estate will be wrapped up according to the Intestate Succession Act, 1987 (Act 81 of 1987). This means that your estate will be divided amongst your survining spouse, children, parents or siblings according to a set formula… and not according to your personal wishes. Be warned!
last will & testament
Your “Last Will and Testament”, usually just called your Will, is a 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 children, then your Will will also say how and by who those - arguably your most precious assets - get looked after when you die.
Legal Guardian
A legal guardian is a person - either chosen by a child’s biological parents or appointed by the Master of the High Court - who acts as the primary caretaker of a minor. (In South Africa, a minor is a person below 18 years of age). A legal guardian comes into the equation when parents are unable to care for their kids or have died.
testamentary capacity
This is the legal phrase used to refer to the ability and intention of a person to make a valid Will. It is decided on a few factors. Is the person mentally capable of appreciating the nature and effect of signing a Will? What is the person’s general mental and physical condition? Does the person have the intelligence and capacity to understand the legal implications of a Will? Does the person intend to make a Will or do they have a proverbial “gun to their head”? Is the person being forced or tricked into signing a Will?
Testator
A testator is a person who has a Will. They are responsible for drafting and signing their Will. In South Africa, a testator must be older than 16 years of age. They must also have testamentary capacity.
Witness
A witness is a person who signs someone’s Will as, well, as witness. This person must be older than 14 years of age at the time of signing. They must also be sound of mind. A witness can’t inherit anything from the Will that they’re signing. There’s nothing to actually stop someone from signing a Will that they are a beneficiary of… however, any inheritance left for them in said Will will be invalid. Not ideal. The practical effect of this is that you would probably not want your spouse or child to be a witness to your will.
Don’t have a Will yet?