Blog #Will

Its your Will - the security in knowing that your affairs will be taken care of.

There are many misconceptions out there with regards to having an attorney draft your Will for you.

Some of the issues entered is that:-

1.  There is no thing as a free Will;

2.  The attorney only wants to be appointed as an executor;

3.  The executor fees are high;

4.  I have a wife and kids so they will take my things anyway.

Free Will

So we address the above sentiments as follows:

For R Crisp Attorneys to draw up your will is indeed free with no strings attached. We will also keep it safe for you at no costs. All you have to do is to inform your loved ones where they can find the Will when required.

R Crisp Attorneys will not insist on being appointed as executors as you will have the option of appointing whomever you want in your Will.  It is your Will after all and we want to assist you in making sure you follow all the formalities that comes with drafting and executing a will.

Appointing an executor

The executor fees are regulated by the Administration of Estates Act, however at R Crisp Attorneys will are able to negotiate on these fees making it easier for your loved ones.  You also have an option of taking out an insurance policy to cover the executor fees.

Defending on the value of your estate you may need an appointed executor or agent to properly administer your estate.  An estate with a gross asset value of less than R250 000.00 only requires the administration by a qualifying person to be appointed to administer the estate.

If the gross assets of the deceased estate is more than R250 000.00 then the Master of the High Court in any event would appoint an executor.  If the appointed executor does not qualify to administer the estate, holding the necessary positions as required by the Master of the High Court then you would have to appoint an attorney, trust company or an accounting firm as an agent.

At times the appointed sole executor may not be found/ his or her whereabouts maybe unknown, or such person may refuse to be the executor of the estate or has passed on, this alone may cause delays in winding up the estate and the Master of the High Court would then appoint a person of their choice and had an individual just appointed an attorney the Firm would then be able to easily continue to administer the estate obtain the necessary letter of executorship and proceed to wind up the estate accordingly without causing much delays to the beneficiaries of the estate. 

Excerpt from the Master’s website:  Appointment of an Executor:

• In estates where the assets are valued more than R250 000, or where the estate is insolvent, an Executor is appointed by the Master. This is normally the person named in the will as Executor, or if there is no will, the person nominated by the heirs. It should be noted, however, that the Executor, if he/she is a lay person, should be assisted by an Attorney, Trust Company or Accounting Firm. He/she must also lodge security to the full value of the estate unless he/she is exempted by the will, or is the parent, spouse or child of the deceased.
• After appointment this person must administer the estate in terms of either the will, or if there is no will, the Intestate Succession Act.
• The Executor has six (6) months after the date of appointment in which to lodge a full Liquidation and Distribution Account with the Master. This account is a detail report on his/her administration of the estate.

Executor’s fees

Executor fees are regulated and it is currently 3.5% of the gross value of assets on death and 6% of income accrued after death and they can charge for VAT on that percentage as well.

Wife and Kids

Your wife if you are married to her in community of property will by virtue of the marriage in community of property inherit a half-share in the estate.  She will further be entitled to a greater of R250 000.00 or a child’s portion and the child(ren) will inherit the balance.

Let's paint a scenario for you:

So the husband dies leave a few assets and a property.

The wife, minor child and 2 (two) adult children from a previous marriage are to inherit.

The 2 (two) adult children refuse to co-operate with the deceased's wife claiming the property belongs to them.  

What shall you do in that instance?  

Signing a Will will avoid all these types of unnecessary delays in winding up the deceased estate.  These are some of the reasons why the estates take long to conclude and you will find that many of these scenarios do play out after one passes on.

Protect your rights make a Will.

It is thus in your best interest to ensure you have a valid Will in place and based on the above appoint R Crisp Attorneys as executors of your estate for your peace of mind.  Please do not hesitate to contact us should you have more questions on this matter.

----------------------------------------------------------

The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated with the most current and accurate information. Please speak to our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to the full terms and conditions on the website. For permission to reproduce an article or publication, please contact us ruth@rcrispattorneys.co.za.

 What is in the name of an Ante-Nuptial Contract and why sign one before marriage?   

Congratulations so you and your partner having decided to tie the knot after weeks, months or even years of courting. 

As a couple one of the most important things to discuss before marriage is marital regime should govern your marriage to safeguard both parties’ interests. 

Should you or should you not sign an ante-nuptial contract.  An ante-nuptial contract is applicable and relevant when you and your partner, spouse to be have decided to marry Out of Community of Property.  Out of community of property in the sense that your individual estates would not be joined together after matrimony.  If your intentions are not to be married in community of property where you will be jointly and severally held liable for each other’s debts and liabilities and the need to request each parties’ consent in terms of section 15(2) of the Matrimonial Property Act 88 of 1984 then sign an Ante-nuptial contract is the way to go. 

An ante-nuptial contract must be executed before the solemnization of the marriage and registered in the deeds office within 3 months of its execution.   If this is not done before a Notary prior to the solemnization of the marriage the parties will be considered as married in community of property.  The Notary will do the registration on your behalf at the deeds office and furnish you with the original registered contract after registration. In South Africa only two (2) types of ante-nuptial contracts apply; 

• With accrual; or
• Without Accrual

What does this really mean to you? 

Let’s break it down further:

A marriage out of community of property with the application of the ACCRUAL system is a marriage regime whereby the parties choose to marry out of community of property including the accrual system and expressly exclude in community of profit and loss.  

The accrual system provides for equal sharing of the profits (accrual) made by the parties during the subsistence of the marriage.  In choosing this option the parties can also choose to include or exclude assets acquired before the marriage. You must also keep in mind that if the commencement value of the estates is not specified at the commencement of the marriage it will be deemed that it was NIL.   

Further, inheritance, donations or non-patrimonial damages are excluded from the accrual system unless the parties agree otherwise in their ante-nuptial contract or if a testator or donor stipulates otherwise. 

At the dissolution of the marriage, be it by death or divorce the net estate values are then determined separately, and the estate with a larger growth will then transfer half of the difference to the smaller estate. 

Should the parties not be able to establish the commencement value of their respective estates prior to execution of the ante-nuptial contract and solemnization of the marriage a provision is made in terms of section 6 (1) of Act 88 of 1984 for the parties to register a Notarial Statement, which must be signed within six (6) months of date of marriage. 

Marriage out of community of property without the application of the ACCRUAL SYSTEM 

This marriage regime in terms of Chapter I (Act 88/1984) the parties must expressly exclude the accrual system. 

In this option there is juristic equality in that each party has full right of disposal over his/her own assets (i.e. you don’t need the consent of your spouse), but there is no financial equality in respect of any contribution the spouses have made in regards to necessaries for the joint household in the absence of an agreement in terms of section 23(4), unless there is an agreement thereto in terms of section 23(3) in marriages before 1 November 1984.  In this instance where the wife’s income is used only for household consumables and the wife has no claim to the husband’s estate and agreement would be best to cover the wife for losses incurred during the subsistence of the marriage. 

This option is recommended where both parties already have substantial estates or incomes and may also be appropriate in cases of second or subsequent marriages.   Basically it means what is yours is yours and what is mine is mine. 

This option warrants that one should draft a Will to provide for the other spouse when the marriage is dissolved by death. 

The marital regimes have also been touched on in our blog on “Is Divorce on the Cards”.

The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated with the most current and accurate information. Please speak to our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to the full terms and conditions on the website. For permission to reproduce an article or publication, please contact us ruth@rcrispattorneys.co.za.

Is divorce on the cards is it really broken?  That ugly word “DIVORCE” rear’s its head. Has the man or woman that you fell in love with disappointed you?  Many a time we are unable to escape the feeling fact that there is no point of reconciliation in sight.  You have reached the breaking point. 

Divorces is something many married couples do not expect, but circumstances of life bring them full circle to this unfortunate destination and couples once in love are now in a battle for assets, children and what is rightfully theirs or not. 

Did you get married in community of property or out of community of property (with or without accrual), civil or customary marriage?  Do not despair with the right assistance you can come out respected and with your dignity intact.  

Some pointers to take into consideration prior to marriage are the following: 

• Discuss your financial status and circumstances;
• Find that common understanding go for counseling prior to marriage;
• Draft and file an ante-nuptial contract even though it might cost you now, however it may save you headaches in the future should this unfortunate thing called Divorce happen to you;
• Create a Trust prior to marriage and place your assets into the Trust to save guard your assets from creditors;

The above mentioned points helps when this unexpected thing called Divorce hits you if implemented prior to marriage. 

Have you considered alternative dispute resolution - Mediation prior to Divorce? The benefits of mediation are that it can help to iron out issues prior to Divorce if divorce  is unavoidable.  In certain Divorce matters mediation is a prerequisite as required by the courts where children are involved. Use a professional mediator,  trusted by both parties, who is qualified to assist with your dispute to reach a desired outcome. 

Some marriages can be saved so remember the following. 

• Mediation is less costly;
• Differences can be easily resolved with a mediator;
• Compliance is required in certain instances as per the provisions of the regulations promulgated in terms of the Act on Mediation in Certain Divorce Matters, no 24 of 1987 where children are involved.

If Divorce is ultimately unavoidable the Plaintiff must proof that the marriage has irretrievably broken down in the case of Schwartz v Schwartz 1984 (4) SA 467 (A), the court was clear in its approach.  The parties will be guided by section 4(2) or section 5 of the Divorce Act 70 of 1979.

The patrimonial consequences of Divorce based on the different marriage regimes are explained herein below: 

Consequences of Divorce when married in community of property for example are the following, but not limited to: 

• The division of the joint estate 50/50 in some instances the plaintiff may request total or partial forfeiture of assets and this may not be easily granted (one must proof); 
• Redistribution of assets;
• In instances where directed by a Will the exclusions of inheritance, donations etc.;
• The sharing of pension fund benefit or interest;
• Spousal maintenance where the other spouse is not able to maintenance themselves.

 Consequences of Divorce when marriage is out of community of property with accrual system is that: 

• The spouses share in the growth of each other’s estate;
• Spouses do not share each other’s assets prior to marriage.

Consequences of Divorce when marriage is out of community of property without accrual system is that the spouses have no right to share in any part of one another’s estate.  The spouse with a weaker financial position upon the dissolution of the marriage will be prejudices in this instance. Speak to us and let us help you through it.

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated regularly and to offer the most current and accurate information. Please consult one of our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to the full terms and conditions on the website.  For permission to reproduce an article or publication, please contact us ruth@rcrispattorneys.co.za.