Estates & Trusts
DECEASED ESTATES & CURATORSHIPS
DECEASED ESTATES & CURATORSHIPS
You can never really plan for the unexpected, but with a knowledgeable team of practitioners, issues are efficiently and expertly handled. Our results-driven law firm works with people, not cases, and our attorneys will be there to help you achieve the best outcome for yourself and your dependants.
WE HAVE EXPERIENCE IN:
- Advising and assisting with estate planning and structuring
- Drafting of wills
- Winding up of estates
- Administration of curatorships
- Formation of trusts
- Providing general advice on various other matters related to estates, curatorships and trusts.
- If you die intestate persons whom you may not have considered for various reasons may inherit your wealth to the exclusion of those you would wish to have benefited. This is particularly true in the case of persons who have divorced and persons who are in long term relationships but who have not married their partners.
- An executor may be appointed who has no knowledge of the dynamics of your estate and needs of your beneficiaries.
- Determining and tracing your heirs may be a time consuming and costly exercise.
- The opportunity to effect estate duty saving measures will also have been lost.
- Failure to nominate an executor or trustee in a will and to exempt them from furnishing a bond of security may place an additional cost and delay on the administration of the estate.
- The executor’s powers of sale and control of assets will be adversely limited.
- Provision for the appointment of a guardian to minor beneficiaries and exemption of such guardian from furnishing security will have been lost as also the creation of a trust for such beneficiaries, resulting in minor beneficiaries’ inheritances having to be reduced to cash and to be deposited to the Guardian’s Fund.
In South Africa there is freedom of testation which is limited only by any claim a spouse may have under the Maintenance of Surviving Spouses Act, claims by a former spouse under a divorce order and claims by minor children for maintenance, but do not overlook the consequences of a claim for collation or equalisation of benefits by a child or remoter descendant.
You can change your will as often as you like either by redrawing it or amending it by codicil but do not overlook the effect of the abovementioned claims.
Our law prohibits a testator from entering into any binding agreement during his lifetime which will govern the devolution of his estate.
Your executor should be someone you trust and who will wind up your estate in the best interests of your beneficiaries.
Your nominated executor, who will have to operate within the parameters of the Administration of Estates Act as closely applied by the Master of the High Court, will determine policy in the manner of dealing with your assets. It is therefore sensible to appoint a professional who will attend to the day to day administration and a family member to provide input on family dynamics and needs and who will assist with policy decisions.
Your will is likely to be the most important document you may sign in view of the consequences it will have. It must comply with specific requirements to be valid so that you should seek proper legal advice and not be tempted to draw your will yourself. If you do and it does not comply with the requirements fully your beneficiaries may be compelled to make application at great expense and delay in the winding up of your estate to the High Court for validation of the will or perhaps interpretation of its provisions.
The cost of obtaining a properly drawn will is begrudged by some but is no more than a pair of shoes or service of a car, costs which you would not think twice about incurring!
The consequences of drawing your own will can be dire and the courts are kept busy attempting to interpret or rectify such wills.
A will should not drawn up as a last minute and rushed affair before an air flight or operation for example but requires thoughtfulness and perhaps reconsideration and redrafting until it sits well with your desires. So do not put off what you may regard as a distasteful or difficult exercise. With professional assistance you may find that imagined difficulties or situations can be easily provided for or resolved.
Although you should not be too prescriptive in the terms of your will, as circumstances change all the time you may find that a specific provision has become inappropriate or that your circumstances have changed due to marriage, birth of children, death of a beneficiary, inheritance, amendment of the tax laws, etc., and it is advisable to reconsider the terms of your will regularly in the light of those changes.
Usually any necessary amendments can be brought about in a simple codicil.
We recommend executing an original and a duplicate original of your will and that the original be entrusted to us to be kept in safekeeping in our strong room as, with the passing of time and possible house moving, your copy may become mislaid. We make no charge for holding your will.
You should keep your duplicate original with your other important papers so that the whereabouts of the original becomes apparent. Both copies will however be entirely valid wills.
Should you own assets overseas it may be desirable to limit your South African will to operation in South Africa so that it does not affect your offshore will if you have one.
We can assist with the drawing of an offshore will if the complexity of your offshore assets warrant a separate will.
As the drawing of an effective will and minimising of the effect of estate duty can be a complex matter we recommend that you get into touch with one of our professional specialising in these matters.
As an additional planning step it is desirable particularly for those of advancing years to consider granting a general power of attorney to a trusted family member or close friend to cover the situation where the grantor of such a power suffers a temporary illness or incapacity. It should however be noted that a disability which negates decision-making capacity will not be covered by such a power of attorney.
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