Estate Planning

Matters that may arise under estate planning include:

ANTE NUPTIAL CONTRACTS (ANC)

An ante-nuptial contract is a legal document signed prior to entering a marriage and regulates the financial relationship between a couple. This model can be recommended where each party already has their own substantial estate or income and could therefore be appropriate in cases of second or further marriages. The matrimonial property regime in South Africa can be categorized into either: in community of property or out of community of property. Within the latter, there is a further division of being either with accrual or without accrual. But what does this all mean, and which one is right for you?

In community of property

If couples choose to simply register a marriage, without signing any ante-nuptial contract, then their marriage is regarded as being one in community of property. All assets and liabilities which each of the individuals may own or owe, will on the date of dissolution of the marriage, be it death or divorce, be shared equally between the parties, regardless of the nature of the contribution made by each party.

If, for instance, one of the parties was not employed but managed the household and therefore did not contribute financially, that party would nevertheless on the dissolution of the marriage still be entitled to 50% of all assets and be liable for a portion of all debts.

If no Ante-Nuptial Contract is concluded, marriages are deemed to be in community of property. Couples married in community of property may not transact individually in certain circumstances and will require spousal consent. As a business owner, it would make sense for you to not marry in community of property as your business transactions may require spousal consent.

Out of community of property

Most couples today prefer being married out of community of property and it is in this category that you have the option of being married with or without accrual.

Without Accrual

If couples choose to marry without accrual applying to their marriage, it simply means that all their individual assets and liabilities remain separate throughout the marriage. Each person is therefore responsible and liable for their own debts and for accumulating their own asset base. On dissolution of the marriage, neither party has any claim against the other’s assets nor is any party liable for a portion of the debt of the other. In other words, “What’s yours is yours and what’s mine is mine.”

With Accrual

Most couples tend to marry out of community of property with accrual. With the accrual system, parties can exclude any assets that they have prior to the marriage if they so wish. In addition, statute specifies that certain assets will be automatically excluded from a marriage subject to accrual, such as inheritances, donations or compensation received for pain and suffering.

The party that has acquired the most during the marriage must share a portion of the assets with the other party. Only assets acquired during the marriage will form part of the accrual calculation. Neither party should therefore leave the marriage with less than what they entered the marriage with, and anything built up during the marriage must be shared.

Formalities

Once you have decided which marital regime is best suited for you, you will need an Attorney to draft an Ante-Nuptial Contract for you in the presence of a notary public and two witnesses. The contract itself is registered at the deeds office and is therefore a public document. The Ante-Nuptial Contract is neither a will, nor a divorce order and is simply meant to regulate the financial arrangement between a couple and provide protection against creditors.

COHABITATION AGREEMENTS/ UNIVERSAL PARTNERSHIPS

South African law does not recognize cohabitation as legal relationship despite the increasing numbers of couples choosing to live together without getting married. It is therefore wise for cohabiting partners to enter into a cohabitation agreement. We at RBA Attorneys can help you to draft one.

General topics that the parties will cover by means of such an agreement includes;

who pays the rent;
who pays for household expenses;
that one party does not have a claim to the other party’s property (i.e., what is mine is mine) if that is what the parties want;
whether the parties have a duty to maintain each other and;
what happens if parties no longer want to live together, and more specifically what happens to the property that they jointly purchased.

TRUSTS

A Trust is an agreement initiated by the Owner of a certain asset or assets, whereby the Owner (who could be called the Founder) appoints certain other people to look after the asset or assets – which the owner now places into the care of the Trust.

The Trust Property Control Act No. 57 of 1988 (TPCA) forms the framework in which trusts operate. All decisions and actions taken by the trustees must be made with reference to the trust deed and the TPCA.

Trust property may be movable, immovable, including contingent interests in property, which are to be administered or disposed of by a trustee in terms of the deed.

Types of trusts recognized by South African law:

Inter Vivos (Living) Trust: This is a trust created during the founder’s lifetime. It is established by a trust deed which sets out who the founder, trustees and beneficiaries are, defines powers and duties of trustees and how and when the trust is to be wound up. The founder may also be co-beneficiary and /or trustee. The founder usually donates assets to the trust.

Testamentary (Mortis Causa) Trust: This type of trust is the most used form of trust in South Africa. Testamentary (will) trusts are created by a trust clause in a will, in which the testator bequeaths assets to the trust and stipulates the terms and conditions which will apply to the trust. A testamentary trust only comes into existence upon death of the testator. If for any reason the will is invalid, the trust will not come into effect.

Testamentary trusts are geared towards protecting the interests of minors and other dependants who cannot look after their own affairs. Assets that form part of an estate may be moved to the testamentary trust and sometimes include limited rights such as usufruct (temporary right to use/benefit from trust assets). The appointed trustees administer the trust in terms of the will until the trust terminates, usually after a predetermined period or at a determined event, such as a minor turning eighteen or the death of an income beneficiary.

Trusts are not cheap, so only income generating assets are suitable. They are also complex, and it is wise to obtain expert legal advice from an Attorney before embarking on such a project.

DRAFTING OF WILLS

Having a properly drafted Will that can be executed as per your instructions by the Executor is the one long-lasting act that you can take to protect the people that you love.

A last Will and Testament is the document that you use to plan your estate. It communicates your last wishes as they relate to your possessions, dependents, and people in your life.

If you die intestate (without a Will) inheritances are passed on along bloodlines and not according to your wishes. If you have no Will the money for your Minor Children will be paid into the Government Guardian’s Fund.

DISADVANTAGES OF DYING WITHOUT A WILL:

You have no control with regards to what belongings goes to whom;
Your Minor Children’s money may be paid into the Government’s Guardians’ Fund;
You cannot select who will manage your Estate and / or the Testamentary Trust;
Delays with the appointment of the Executor and delays with the process in general;
Your family may be left destitute;
One of the biggest issues is the delay that may be encountered; your bank accounts and assets would be frozen, leaving your loved ones in financial distress.

BENEFITS OF HAVING A WILL:

You get to select the beneficiaries who will inherit from you;
You decide what each of the beneficiaries will receive;
You can plan contingencies; say you leave something to your children and one of your children dies with you? You can decide in advance how to distribute an inheritance if this happens; i.e., will the deceased child’s share go to your other children or maybe to your grandchildren?
You can qualify an inheritance. For example, your inheritance to your daughter may be excluded from a matrimonial claim;
You may nominate Guardians for your Minor Children;
Your Will gives you the control and assurance that the people you love the most will be taken care of when you are no longer there;
It will enable you to make provision for a Trust to be set up for the protection of the inheritance for your Minor Children;
It is less likely to lead to litigation.

YOUR WILL AND DIVORCE

A bequest to your divorced Spouse in your Will, which was made prior to your divorce, does not necessarily fall away after divorce.

In South Africa, the formalities and administration of wills are regulated by the Wills Act 7 of 1953, but this Act does not contain any provisions which regulate the effect of marriage on a will. It does, however, regulate the effect of divorce or annulment of a marriage on a will.

In this regard it states that if a person dies within three months after a divorce or annulment and that person executed a will before the date of the divorce or annulment, the will must be implemented as if the testator’s ex-spouse had died before the date of the divorce or annulment, unless the will indicates clearly that the testator intended to benefit the ex-spouse notwithstanding the divorce or annulment.

Therefore, in South Africa a will is not automatically void or invalid because of a divorce, but unless expressly stated to the contrary, if a testator executed a will before the date of divorce and dies within 3 months of the divorce, the former spouse of the testator will not inherit in terms of the will and will be regarded as having pre-deceased the testator.

On the other hand, where a testator dies after three months have passed from the date of divorce and the will was executed before that date, the previous spouse of the testator would inherit in accordance with the terms of the will.

WHY APPOINT AN ATTORNEY AS YOUR EXECUTOR?

If you pass away and you have nominated a family member as the Executor, this is likely to add to their stress in this period of mourning. Most family members are not trained to be Executors and have no idea how to proceed once they have been appointed.

Attorneys are professionally trained and are bound by legal ethics and professional standards – this differs from banks and other financial organizations.

If your estate is intricate and you have various assets and businesses, or an ex-spouse, or a disabled dependent who requires maintenance, your Attorney will be able to assist you with your estate planning and the drafting of a valid Will to ensure a smooth transition and to prevent your businesses from being adversely affected by your demise.

You will enjoy the benefits of specialized experience and knowledge.