When would I need more than one Will?

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)

Dying without a Will, especially whilst owning Immovable Property, is a Recipe for a Family Feud:

By Sisteen Geyser – Director, Estates and Trust Department

It is a common but unfounded belief that the State will take over your assets if you die without a Will.

The Intestate Succession Act, no. 81 of 1987, sets out the rules of how the estate of a person who died without a Will should be divided between his/her family members.  It specifically makes provision for a surviving spouse, by ensuring that the spouse will inherit the first
R250 000 or a child’s share of the Estate, whichever is more.  A child’s share is calculated by dividing the value of the intestate estate by the number of children of the deceased (both surviving the deceased and deceased children who passed away leaving descendants), plus the number of spouses who have survived the deceased.

Problems arise where the deceased held immovable property, as the above rules would have the effect of the surviving spouse and all the children (or grandchildren representing a predeceased child) inheriting immovable property jointly.

Where the deceased is survived by children only, and they in turn have minor children, matters become even more complicated.  There may be problems about who will pay the costs of the administration of the estate and the costs of transferring the immovable property to the heirs, and co-ownership of the property by a number of family members may be impractical and give rise to disputes.

Prevention is better than cure in these circumstances.  To ensure that a surviving spouse or one child inherit the immovable property as sole owner, to avoid complicated and possibly contentious sharing, you should draw up your Will accordingly.

Should you wish to draw up a Will or simply revise your existing Will, please contact our Estate and Trust Department.

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)

What is the Role of the Independent Trustee after 1 March 2017?

By Sisteen Geyser – Director, Estates and Trust Department

The Master recently published Guidelines setting out requirements for the appointment of an Independent Trustee, “where the trust is registered for the first time with the Master and it emerges from the Trust Deed that the trust is a “family business trust”.

A “family business trust” is a trust where the trustees have the power to contract with independent third parties, thereby creating trust creditors, where all the trustees are beneficiaries and all the trustees are related to one another.

Such an independent trustee need not be a professional person, but must be an independent outsider (with no family relation to any of the existing or proposed trustees, beneficiaries or founder of the trust) who understands the responsibilities of trusteeship, and will ensure that the trust functions properly and that the provisions of the trust deed are observed.

More importantly, such a trustee “must be competent to scrutinise and check the conduct of the other appointed trustees who lack a sufficiently independent interest in the observance of substantive and procedural requirements arising from the trust instrument. Has no reason for concluding or approving transactions that may prove to be invalid, because he or she would be knowledgeable about the law of trusts.”

The Master may, in certain circumstances, dispense with the appointment of an independent trustee.

Please note that although the Guidelines are applicable to new trusts, it may be necessary to appoint an Independent Trustee to the trust in terms of the Trust Deed, or to ensure that there will be a proper distinction between control and benefit under the trust.

Should you need assistance with the appointment of an Independent Trustee, you are welcome to contact our Estates and Trust Department.

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)