Newsletter 8 (Jun 2017)
Dear Colleague
Just a reminder that Legatus Trust is a fully licensed, independent trust company dedicated to providing you with a full array of fiduciary services as a well-respected authority on the drafting of Wills and rendering of fiduciary services throughout South Africa. Whether it is a Will you need, a deceased estate to be administered or a Trust to be created, registered and administered, we can help you.
Life happens every day, and sudden unexpected changes can occur. Disasters are part of life, as experienced lately by the inhabitants of the Western Cape for instance, with the raging fires, gale force winds and wild storms. Life wrecking situations. While our hearts go out to everyone affected by these disasters, it is a wakeup call as well. Be prepared!
Life is about change, sometimes it’s painful, sometimes it’s beautiful, but most of the time it’s both.
MAKE PROVISION FOR THE COST OF A DECEASED ESTATE
Read more in the next edition.
MORE THINGS TO CONSIDER WHEN DRAFTING A WILL
In the previous edition we pointed out a few unfeasible instructions in a Will. Other scenarios that are difficult or impractical to execute include the following:
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If the name of a welfare organisation is incorrect. Should there be more than one such an organisation, the possibility is that the organisation that was meant to benefit, will not do so.
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Where there is no liquidity in an estate and special bequests are made, the shortfall in the estate can cause the heirs to lose these assets where they cannot cover the shortfall.
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A bequest to someone who has signed the Will as witness or whose spouse witnessed the Will, can prevent that person from inheriting. Such a person cannot inherit more than he/she would have inherited in terms of the Law of Intestate Succession, which means that such a person will not inherit anything if he/she would not have been entitled to inherit in terms of the Law of Intestate Succession.
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Provision not being made for substitution of residuary heirs. The estate will devolve intestate, and a family member one does not wish to inherit, might be one of the intestate heirs.
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Where there are minor children involved, it is impractical to bequeath an estate to a third person as the minor children will have a maintenance claim against the estate. Even if a Trust has been created in terms of the Will, the minors’ inheritance will be paid into the Guardian’s Fund as the maintenance claim is a claim and not an inheritance.
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Where no Trust has been created in terms of a Will, a minor’s inheritance will also be paid into the Guardian’s Fund, which means that one cannot decide how the capital and income must be utilised.
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A fideicommissum is limited to three generations. That is a condition that once a person passes away, assets will devolve upon another and when thát person passes away, then upon another.
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To bequeath a portion of a moveable asset of a fixed property to someone might cause practical problems.
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A clause in a Will directing that a fixed property must be sold means that the property has to be sold before finalisation of the estate. Should the property market be slow at that stage, the property will still have to be sold. If the property was just bequeathed to heirs without this condition, they could have taken transfer and sell the property when the economic climate has improved.
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To direct that all assets be converted to cash can result in depreciation of the value of assets as most second-hand articles do not have great monetary value and everything has to be sold before the estate can be finalised.
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In a Close Corporation or company, where spouses are married in community of property, the majority interest/share members/shareholders cannot bequeath more than 50% of the interest/shares to someone else, unless the joint estate has been massed. It does not matter what the percentage of their membership/shareholding is.
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Since a spouse married in community of property is only entitled to a half undivided share in all the assets in a joint estate, even if such property is registered in the name of one of these spouses, it is not possible to bequeath an entire property to someone else, except in the case of a massed estate. Without massing, only half share of the relevant asset can be bequeathed to a third person.
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Where spouses are married in community of property or where a person is part owner of a property, it is impractical to bequeath a portion of a property to someone else, subject to a usufruct.
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Where property has been bequeathed subject to a usufruct and the usufructuary has not been exempt from security, the usufructuary will have to provide security, which he/she might not be in a position to do.
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A farm property cannot be transferred into the names of more than one person. If it is therefore bequeathed to more than one person, it will not be possible to transfer the property into all their names. The property will have to be sold or the heirs will have to enter into a redistribution agreement.
MARK GRUENWALD
The Executive Editor of Captain American and Iron Man, as well as being involved in other Marvel Comics, Mark Gruenwald was a well-known practical joker. When he unexpectedly died in 1996 of a heart attack at the young age of 43, many of his friends and co-workers initially believed the report of his death to be just another joke.
A longtime lover of comics, Gruenwald made it known amongst his friends and families that his one desire was to have his ashes used in part of a comic. When he died, in accordance with his request, he was cremated and his ashes were mixed with the ink used to print the first printing of the trade paperback compilation of Squadron Supreme.
Until next time.
“The Legatus Times” Team
