Cancer and your will: leaving a legacy, on your own terms

By talking about it, you can take control of your future and ensure that your family is in the best possible position, both financially and emotionally, should you face terminal cancer. Your wishes are formally and legally stated in a document in which a person specifies the method to be applied in the management and distribution of their estate after their death – your will.

The importance of having a will

Your journey with cancer is a challenging one, that can be made even more difficult by not having your affairs in order. By planning ahead and having a will, you can ensure that your assets go to the people you want them to go to. While many cancer diagnoses are not terminal, facing cancer forces you to think about your life and those you love. As life can be unpredictable, even perfectly healthy people are strongly advised to ensure their will is in place to ensure their wishes are legally documented and easily accessible at all times.

Dying without a will in place, not only delays the administration of your estate, it also gives the state authority to distribute your assets according to the Intestate Succession Act, normally to your closest relatives. The challenge here is that a state-appointed executor will not necessarily take your last wishes into account. This may mean that people you would like to benefit from your assets often don't, and those who do benefit may share in your assets in a manner that you didn't intend.

For help drawing up a will, it's best to use the services of a professional, like a financial adviser, a representative at your bank or an attorney. They will make the process easier to understand and ensure that your will is set out correctly following all legal requirements.

You will need to appoint an executor for your estate. An executor is responsible for ensuring your wishes are carried out as you intended. While many people choose a family member and someone they trust in this role, winding up an estate is a lengthy and complex process that can be a huge emotional weight to bear. It may be better to appoint an impartial professional who can simplify the administration process, and ensure your wishes are carried out effectively. Your executor might delegate certain functions, at a negotiated cost, to an attorney. Doing this might also save on costs, dependant on size of estate.

The Guardian's Fund

Minor children (those under the age of 18) can't inherit assets directly from your estate. If you nominate your children as beneficiaries and both you and your spouse die before they reach 18, any funds due to them will be paid to the Guardian's Fund. The Guardian's Fund falls under the administration of the Master of the High Court where funds are invested with the Public Investment Corporation.

A challenge in dealing with the Guardian's Fund is that access to capital is limited and is at the discretion of the Master of the High Court. The person you have appointed to take care of your children will have to petition the Master of the High Court should capital be needed for anything related to your children.

The Guardian's Fund only manages liquid assets. Therefore, if a car or house is left to a minor, these assets will be sold and the proceeds will be allocated to the Guardian's Fund to manage on behalf of your children until they reach 18.

Setting up a trust to cater for funds left to children

A better way of leaving assets to your children is to set up a trust that stipulates which assets must be held as physical items (for example a house) and which can be liquidated. A trust also allows you to stipulate whether or not your children can borrow against the trust in the event of their needing funds to start a new business or other circumstances. A trust is a more flexible and robust way to pass your assets on to your children and it enables you to appoint trustees that you know and trust, to manage assets. One can leave instructions in one's will that indicate that a Testamentary Trust should be set up. This sort of trust is set up after a person's death and specifically protects the rights of minors etc. and is treated as individual, for tax purposes. A trust set up before a person passes away is called an Inter-Vivos Trust and the tax treatment is different on this sort of trust.

Having sufficient liquidity in your estate in the form of life insurance, cash and investments to cover some of the immediate costs associated with your death, as well as living costs while your estate is being wound up, is extremely important. Some of the fees and costs that are associated with an estate include executor fees, estate duty, Master's fees, funeral expenses, medical costs, tax, liabilities and accrual claims. With Discovery Life, the immediate costs of your death can be covered by the Estate Planning Benefit. This benefit features a market-first AccessCover Benefit, allowing your surviving spouse to access up to 30% of your sum insured (up to R2 million) after your passing.

A living will or Advanced Directive

Update your will whenever your circumstances change. If your cancer is advanced and treatment is no longer effective, you may want to consider a living will. Also known as an advanced directive, this gives instructions on your end-of-life care. Having a legal document where your wishes are clearly stated can be a gift to family members who otherwise might have to make these difficult decisions themselves.

It can be hard to think about drafting a will while trying to focus on undergoing cancer treatment. It will often be emotionally challenging and you may find loved ones don't want to talk about the thought of a loved one's cancer treatment being unsuccessful. However, it is one of the most important things you need to address in your life, and for the future of your family. As emotionally difficult as it will be, it will be a gift of love to your family, knowing that you haven't left a complicated estate that can take years to sort out.