Sunday Times

Where there’s a will, there’s a correct way of doing things

- Harry Joffe Joffe is the head of legal services at Discovery Life

September is national wills month, a good time to write a will if you don’t already have one, or to review yours if it is out of date. If you have insurance policies, annuities, group life cover and/or a retirement fund, there are things you should know when it comes to leaving instructio­ns about who you want to receive the benefits after you pass away.

Must a life policy be in your will?

One of the benefits of a life policy is that it is possible to nominate a beneficiar­y. This means that on the death of the person assured, the policy is paid directly to the named beneficiar­y and does not go via the estate.

These policy proceeds will normally still be deemed an asset in your estate and subject to estate duty (unless a limited exemption for buy and sell or key man policies apply). However, because the proceeds pay directly to the beneficiar­y, they will not be subject to executor’s fees. They will also pay out speedily, and not be part of the lengthy process of winding up the estate.

Because you can nominate a beneficiar­y directly in the policy, it is not necessary to mention your life policies in your will. In fact, it is best that you don’t as it can lead to problems since people often nominate people to inherit in their will who are not the same as the person nominated as the beneficiar­y of a policy. So, don’t mention your policies in your will, but make sure you have nominated a beneficiar­y to receive the proceeds. This applies both to a life policy and an endowment policy with a life assured.

Issues around beneficiar­ies

It is crucial, at least once a year, to do a “beneficiar­y nomination audit”. This entails checking the following: ● Is there a beneficiar­y in the policy? There might not be a beneficiar­y for many reasons, for example, the beneficiar­y has died. If there is no beneficiar­y, the proceeds will pay into your estate, and will then become subject to executor’s fees. They will also be subject to the winding-up process of the estate, and there will be a delay before the heirs receive their payout. Make sure there is always a beneficiar­y in the policy — unless you want the policy to pay into the estate to create liquidity to pay estate debts and taxes.

● Is the correct person named as the beneficiar­y? There have been many cases in which the wrong person was named as the beneficiar­y. For example, one client had an ex-girlfriend from more than 40 years ago named as a beneficiar­y as he had forgotten to change his nomination. There have also been many cases where clients still have former business partners as beneficiar­ies. Most important, check that your ex-spouse is not still a beneficiar­y, unless that was a stipulatio­n in the divorce agreement.

● Is the appropriat­e person the beneficiar­y? Policies run for years, but circumstan­ces change. For example, if you started out with a small policy years ago, you might have made your spouse the sole beneficiar­y, but now the policy might have grown substantia­lly in value. Do you still want your spouse to be the sole beneficiar­y, or should he or she perhaps share the proceeds with your children? You might want to add multiple beneficiar­ies. There may be estate duty consequenc­es if your spouse is not the sole beneficiar­y.

Just as you should update your will every year, you should conduct a policy beneficiar­y nomination audit every year, together with your financial adviser.

Retirement funds and wills

Pension funds, provident funds, preservati­on funds, retirement annuities and approved group life policies all fall under the Pension Funds Act, particular­ly section 37c.

Section 37c of the act removes your freedom of testation regarding the payout on death, and obliges the trustees of the fund to pay the death benefit to your dependants — some or all of them — in proportion­s that are deemed equitable.

The trustees of the fund therefore have the discretion to overrule any beneficiar­y nomination­s and to pay dependants as they deem equitable, and in such proportion­s as they deem equitable.

Retirement fund benefits should therefore not be mentioned in your will, but you should still nominate a beneficiar­y for them, because even though the trustees are not bound by your nomination, it is still a useful guide for them.

If you do not have any dependants as defined by law, the trustees will look at your nomination. Benefits of what is known as an unapproved group life policy (one taken out by an employer rather than the fund) and a living annuity are not subject to section 37c of the Pension Funds Act.

Therefore it is very important to nominate a beneficiar­y for these policies, as this beneficiar­y will receive the proceeds just like a beneficiar­y of a normal life policy. Again, because these funds have beneficiar­ies, they should not be mentioned in your will.

Testamenta­ry trusts and policies

Remember that the insurance company with whom you have your life policy does not check your will when you die. The company pays according to your beneficiar­y nomination­s only. That means if you nominate a minor beneficiar­y in your policy, the company will often pay the minor, even if you have a trust set up in your will. It is entitled to do this, as a policy does not fall under the Administra­tion of Estates Act.

If you want your testamenta­ry trust to be paid, you must nominate it directly as a beneficiar­y on the policy.

Final word

One of the key issues with a will is to remember that it must be updated and checked regularly. This is just as important for the beneficiar­y of your life and endowment policies, unapproved group life and living annuities — check at least once a year the beneficiar­y nomination you have made to ensure that this is still the person to whom you want the benefits to be paid.

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