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 Tsungai Chekerwa-Machokoto

It is well known that only death and taxes are certain in this life, yet we always try to avoid our mortality and fudge our estate planning. The cases I have witnessed where people have left the future of their children to chance are just too many.

The sad thing is that even when people witness these situations continually, they are only alarmed for the first few days after the incident but go back to their usual complacency, reasoning of course that it won’t happen to them. Children, the most common casualty of the lack of a will, have suffered to unimaginable extents all because their parents didn’t want to accept that the certain would happen.

How important is it to have a will? Does it really work? What if I can’t afford a lawyer? These are some of the questions that I have come across and they are questions that people generally ask themselves and then end up not doing anything about it.

A money psychologist, Winnie Kunene said “You don’t want your children fighting like cats and dogs over your things when you’re gone. Promote love and peace from the grave by visiting a qualified professional to draw up your will and ensure your spouse does this too.”

It is important to sit down with your spouse to discuss the event of your death. It is unfortunate that when women suggest that they talk about a will, the usual response is “Do you want to kill me?” This answer then intimidates the woman into remaining in oblivion about the state of affairs.

Death is sure. Nothing is as sure as death. Whether you want to talk about it or not is really up to you but you can choose to pretend to be immortal or to plan for what happens after your departure.

Dying without a will means that the court will decide what happens to your assets. They will be distributed among your spouse, children and relatives and you               will have given up the right to have a say in how this is done.

Even a distant cousin you barely knew could try to prove they have a claim. An attorney or a bank can help you to formulate your will. They will help you work out your assets and liabilities to determine your estate’s actual value. An attorney will charge a private fee for doing this for you while a bank can charge a smaller fee, just as long as you will appoint them as executor.

An executor is the person you choose to wind up your estate by collecting all your money, paying all your debts, estate duty and any other taxes due, and finalising the estate with the Master of the High Court. It can be done by anyone you trust such as a spouse, family member or friend who will follow instructions. But the person should have some knowledge about the procedure, or it could take a very long time to  complete.

There are costs and taxes that are involved in a deceased person’s estate. There is an estate duty of about 20 percent payable on any deceased person’s estates within certain parameters of value. Besides that, there is capital gains tax of a certain percentage of the market value of the stage at the date of death and donation tax, as you are deemed to be making a donation to your estate. If a house is in inheritance, transfer duty is on a sliding scale and will also need to be paid.

It is wise to review your will every three years. If it looks as if your beneficiaries won’t have these funds to pay, it is best to take out an insurance policy payable to the estate.

As far as children are concerned, you will need to appoint a guardian for the younger children to ensure that if their other parent is also deceased, someone will take care of them until they are the age of majority which in Zimbabwe is 18 years. There is also an option of creating a testamentary trust to protect your children’s inheritance.

With testamentary trusts, assets reach your children by whatever age you decide. Choose a trustee you trust implicitly. If you appoint your chosen children’s guardians as trustees of this trust as well, then you should also appoint another trustee such as a financial planner, an accountant, or lawyers to prevent abuse of funds. This person can also offer professional advice in handling the legal and financial matters of a trust.

Another benefit of a trust is that assets owned by the trust aren’t subject to estate duty, capital gains and executor’s fees upon your death. After you die, trust assets are accessible at all times, while assets in your personal estate are frozen during the estate administration process.

My country is full of all kinds of entrepreneurs because of the 94 percent unemployment rates. Therefore, entrepreneurs need a good succession plan. This should include ownership transfer and management succession planning, which also involves training and support of successors. Make sure you have a buy-sell agreement in place so that upon the death of one of the owners, the other owners can automatically purchase the interests of the deceased instead of their spouse and children becoming owners.

The spouse and children should never become owners if they were not part of the business in the first place. A business trust can also be created in terms of which the assets of the company belong to the trust alone and not the individuals. This means that creditors can’t claim against them. It is also important to deliberate cash flow issues to consider whether your business will survive your loss or if you need to make other plans.

It also provides trustees with limited liability and tax advantages. Zimbabwean entrepreneurs should really consider protecting their businesses and their families this way.

There is also what is called a living will. This is when you give instructions that should be followed if you are unable to express them for yourself due to medical reasons. For example, if you fall into a coma or become brain dead with no reasonable prospect of recovery, you don’t want to be kept alive through artificial support such as ventilators, pacemakers or tube-feeding.

You can also consent to receiving drugs that will alleviate your suffering, even though it may hasten your death. Now I know that this will not go down well with our religious or cultural beliefs as Zimbabweans but it is a choice that is available for an individual to make. Finally, you can consent to your organs being donated to recipients needing them.

It is critically important to have wills drawn up when everything is going on well with us. Leaving the future of our children to chance is an irresponsible thing to do especially because death is certain. Not wanting to plan for your death does not make you live forever, it makes you unwise. Refusing to talk about your death because you think it will make you die sooner is quite pathetic especially if you have young children in your house. Death can be planned for. You can take policies that cushion all the transition phases.

Trusts are the best for growing children. Finally, the greatest gift that you can give to your family is to make your wishes known. It is heart-warming and comforting when you know that your parents thought of you and loved you enough to ensure a smooth life for you that will make sure that you never want for anything when they die.

Today I decided to give my readers free legal advice wearing my lawyer hat. For any further information, reach me on [email protected]