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• Death certificate or death notice.
• Identity document of the deceased.
• Letters of Executorship (J238) (if applicable).
• Letter of Authority (J170) (in cases where the estate is less than R250 000).
• Certified copy of the executor’s identity document.
• Power of attorney(if applicable).
• The name, address and contact details of the executoror agent.
• The last Will and Testament of the deceased.
• An inventory of the deceased’s assets.
• The liquidation and distribution accounts (if available).

• After the date of death of a person, a new taxable entity comes into existence – the “estate”.
• The assets of the deceased will be held by the estate until the liquidation and distribution account has lain for inspection and become final under section 35(12) of the Administration of Estates Act after which the assets will be either handed over to the heirs or delivered to the trustee of a trust estate.
  

References:

• http://www.sars.gov.za/TaxTypes/EstateDuty/Pages/default.aspx
• http://www.sars.gov.za/ClientSegments/Individuals/Tax-Stages/Pages/Tax-and-Inheritance.aspx

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The post Why is it important to deal with collation in your will? appeared first on Schnetler's Inc.

The South Africa common law presumption of collation (collatio bonorum) is alive and well.

This presumption is rooted in the belief that a testator intended that there should be equality in the distribution of his estate among his descendants (“children”). Collation is the process by which the inheritance of certain descendants (heirs)of the deceased is adjusted to consider any substantial benefits received from the testator during his lifetime.

Collation is achieved by adding to the inheritance the amount due by each heir. The new total shall then be divided between all the heirs. An heir cannot, if he refuses to collate, enforce legal remedies to claim his share of the inheritance.

Collation further takes place by operation of law and therefore applies automatically to your will, or if you have failed to execute a will it applies to your intestate heirs.

If you, therefore, intend to release any of your descendants (heirs) from this obligation to collate it should be clearly expressed in your will, by adding the following paragraph: –

“I direct that my children need not collate any of the gifts or sums of money they received from me during my lifetime and I remit collation so far as they are concerned.”

Or if you specifically intend for one of your descendants (heirs) to collate it should be clearly expressed in your will, by adding the following paragraph: –

“I record that during my lifetime I advanced to my son, Piet Louw sums totalling in all R300 000 (three hundred thousand rand) to enable him to qualify as an attorney and I direct that he collates that sum with my estate before he is paid his inheritance in terms of this will.

An heir who is obliged to collate has the choice of restoring the property he has received or permitting a deduction equal to the value he received at the time of the gift.

Considering the above it is imperative to have your true intentions reflected in your will and to enlist the services of an estate specialist to assist you with your estate planning and the drafting of your 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. Errors and omissions excepted (E&OE)

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If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.

Marriage and property

When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

1. State where your title deeds are kept and record any outstanding bonds and all insurance
2. File up-to-date rates and taxes receipts
3. Record details of the leases on any property you have
4. State who collects your rent
5. State who compiles your yearly accounts
6. State where your water, lights and refuse deposit receipts are kept 

If you die without a will

According to the Intestate Succession Act, 1987, your estate will be distributed as follows:

1. Only spouse survives: Entire estate goes to spouse.
2. Only descendants survive: Estate is divided between descendants.
3. Spouse & descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and descendants.
4. Both parents survive: Total share is divided equally between both parents.
5. One parent: Total Estate goes to the parent.
6. One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
7. No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
8. No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.

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)

Reference List:

• http://www.privateproperty.co.za/advice/property/articles/the-importance-of-a-will-for-homeowners/5017
• http://igrow.co.za/how-property-passes-upon-death/

The post OWNING PROPERTY WITHOUT A WILL appeared first on Schnetler's Inc.

Who your property is passed on to depends on whether you have a valid will or not. If you do have a valid will, then your property will be divided according to your wishes stated therein. If you die without a will (called “intestate”), then your property will be divided amongst your immediate family according to the laws of intestate succession.

How can I create a Will?

If you are older than 16, you have the right to create a will, to state who you would want your property to go to when you die. In order for your will to be valid, it needs to be compiled in the proper way.

1. According to the law, you have to be mentally competent when you compile your will; this means that you must understand the consequences of creating a will and that you must also be in a reasonable state of mind when you do so.
2. You must make sure that your will is in writing in order for it to be valid.
3. Two people older than 14 years must witness the creating of your will (these witnesses cannot be beneficiaries).
4. You have to initialise every page of the will and then sign the last page. The witnesses must also initialise and sign the will.
5. You can, and should, approach a lawyer to help you draw up your will to avoid creating an invalid will.

You can appoint an executor in your will to divide your property amongst your loved ones. An executor is the person who will make sure that your property is divided according to your wishes, as set out in your will, and he/she will also settle your outstanding debts. If you don’t choose an executor yourself, then the court will appoint someone, which is usually a family member.

What are the risks of not having a Will?

If you don’t have a valid will when you die, your property will be divided according to the rules set out by the law. These rules state that a married person’s property will be divided equally amongst their spouse and children. If you don’t have a spouse or any children, then your property will be divided between other family members. If you also don’t have any blood relatives, then the property will be given to the government. You might think that you do not need a will, as your family will divide your possessions amongst each other, but you must keep in mind that delays in dealing with your estate could affect your family negatively; they might be relying on their inheritance for an income.

• The beneficiaries of your estate will be determined according to the laws of intestate succession, if you die without a will.
• This law determines the distribution of your assets to your closest blood relatives, meaning that your assets may be sold or split up against your wishes.
• Some of your assets could be given to someone in your family that you did not intent to benefit from your estate.
• Without a will, you cannot leave a specific item to a specific family member or friend.
• If you live with someone but are not married to them, the law will not necessarily recognise him/her as a beneficiary of your estate, unless you have left a will naming them as a beneficiary.

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).

References:

Western Cape Government. (2017). Making a Will. [online] Available at: https://www.westerncape.gov.za/service/making-will [Accessed 22 Jun. 2017].

Momentum.co.za. (2017). Drafting a will and setting up a trust. [online] Available at: https://www.momentum.co.za/wps/wcm/connect/momV1/f150ba2e-3724-4b42-9265-332106cb6b83/drafting a will_E vs 2 (07032013)[1].pdf?MOD=AJPERES [Accessed 22 Jun. 2017].

The post THE BASICS OF CREATING A LAST WILL & TESTAMENT appeared first on Schnetler's Inc.

For newlyweds, one of the most important tasks to attend to is estate planning. The estate planning will depend on what the couple wants and what form of marriage they are in. It is therefore important to keep the following in mind when planning the years ahead together.

The post PLANNING YOUR ESTATE AS NEWLYWEDS appeared first on Schnetler's Inc.

Marriage and property

When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

1. State where your title deeds are kept and record any outstanding bonds and all insurance
2. File up-to-date rates and taxes receipts
3. Record details of the leases on any property you have
4. State who collects your rent
5. State who compiles your yearly accounts
6. State where your water, lights and refuse deposit receipts are kept

If you die without a will

According to the according to Intestate Succession Act, 1987, your estate will be distributed as follows:

1. Only spouse survives: Entire estate goes to spouse.
2. Only descendants survive: Estate is divided between descendants.
3. Spouse & descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and descendants.
4. Both parents survive: Total share is divided equally between both parents.
5. One parent: Total Estate goes to the parent.
6. One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
7. No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
8. No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.

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)

References:

http://www.privateproperty.co.za/advice/property/articles/the-importance-of-a-will-for-homeowners/5017

http://igrow.co.za/how-property-passes-upon-death/

The post OWNING PROPERTY WITHOUT A WILL appeared first on Schnetler's Inc.

What is a Codicil?

When you decide to make an addition to your Will, or a minor alteration thereto, you may make use of a Codicil. A Codicil is a schedule or annexure to an existing Will, which is made to supplement or to amend an existing Will. A Codicil must comply with the same requirements for a valid Will. A Codicil need not be signed by the same witnesses who signed the original Will.

What if I want to amend my Will?

1. Amendments to a Will must comply with the same requirements for a valid Will and if you cannot write, with the same requirements listed under that heading.
2. When amending a Will, the same witnesses who signed the original Will need not sign it.

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.

1. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
2. This provision is to allow a divorced person a period of three months to amend his/her Will, after the trauma of a divorce.
3. Should you, however, fail to amend your Will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in your Will.

References:

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

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)

The post CAN I AMEND MY WILL? appeared first on Schnetler's Inc.

Why should I have a Will?

A Will enables you to name your heirs. Should you die without a Will (intestate) your assets will be divided according to the Intestate Succession Act. That may benefit people whom you did not wish to name as your heirs.

Who is allowed to sign your Will as witness?

Your will must be signed in the presence of two witnesses, who also sign in each other’s presence. Only persons older than 14 years are qualified to sign as witnesses. 

What is the cost of Executor’s fees?

The maximum remuneration payable to an executor is determined by law and is currently fixed at 3.5% of the total gross estate value. Executor’s fees may, however, be negotiated with the person who has been appointed as executor of your Will. 

How often should I revise my Will?

It is recommended that Wills be revised at least every 2 years. It is also important to review your Will after events like marriage, birth, divorce or the purchase of property.

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)

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