By Sisteen Geyser – Director, Estates and Trust Department
A South African client who owns property in Namibia and the UK, recently asked me what would happen to his offshore assets if he were to die while resident in South Africa.
Although all the worldwide assets of a South African resident are potentially taxable under the Estate Duty Act, there may be assets that are exempt, e.g. inherited offshore assets, or assets which a person owned before becoming resident in South Africa for the first time.
In addition to tax implications there are practical problems arising from owning property in different countries or jurisdictions: the rules applicable to the administration of a deceased estate differ. In South Africa the Administration of Estates Act regulates the process, but different rules apply in other jurisdictions.
The solution to the smooth administration of an estate which includes foreign assets is to have a properly drawn up Will which deals with such assets, so that your Executor can give effect to your wishes for those assets.
The Will must comply with the legal requirements and inheritance rules of the specific country. It should be in a language appropriate for that country. An Afrikaans Will which needs to be translated into German before it can be used for your Swiss Estate will be a waste of both time and money.
Please contact our Estate and Trust Department, should you have queries about whether you need to have a Will for more than one jurisdiction, or assistance with the drafting of your Wills.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
Having a Will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and want to add him/her into your Will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.
What is a Codicil?
When you want to add something to your Will or make a minor change, then you can make use of a Codicil. A Codicil is a minor addition or minor amendment to an existing Will. The legal requirements for a valid Will also apply to a Codicil. A Codicil needs not be signed by the same witnesses who signed the original Will.
What if I want to amend my Will?
- All amendments to a Will must comply with the legal requirements as stipulated in the Wills Act. If you want to make material amendments to an existing Will, it is always advisable to draft and sign a new Will.
- The original Will and the Codicil are separate documents, signed at different times and not necessarily before the same witnesses.
Must I amend my Will after divorce?
A bequest to your divorced spouse in your Will, which was made prior to your divorce, will not necessarily fall away after divorce.
- The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse shall not take effect if you die within three months of the divorce.
- This provision is to allow a divorced person a period of three months to amend his/her Will, after the trauma of a divorce.
- Should you however fail to amend your Will within three months after your divorce, your divorced spouse will benefit as indicated in the Will.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.