Estates, Wills and Trusts
Property practitioners are often involved in marketing property which is an asset in a deceased person’s estate. However, buying from a deceased estate can deter buyers or investors from pursuing the purchase because such transfers are known to take longer than usual to finalize.
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Having a will is one of the most important parts of estate planning and ensures that your estate is distributed according to your wishes. However, without a will in place, what happens to your estate after you die?
In a recent ruling, the Constitutional Court decided that section 1(1) of the Intestate Succession Act is unconstitutional in that it does not include life partners in relationships intended to be permanent in the definition of “spouse”.
Not having a will can cause serious conflict between family members, and the unfortunate reality is that those closest to you are often the ones left behind with nothing to inherit. A recent study don by Sanlam shows that 75% of black South Africans do not have a will. But what exactly does this mean for the family?
In a recent landmark ruling, the Constitutional Court (Concourt) confirmed the invalidity of Section 1 (1) of the Intestate Succession Act 81 of 1987, as well as Section 1 of the Maintenance of Surviving Spouses Act 27 of 1990. The initial application had been brought before the Western Cape division of the High Court whereby the Applicant (surviving life partner) sought an order against the Executor’s rejection of a claim for inheritance and maintenance against the deceased estate.
Not all people who find themselves having to deal with Trusts understand what it is all about, therefore in this brief discussion we will highlight the prominent issues that one has to familiarise themselves with in order to safeguard their interests when dealing with a Trust.
Since it is a matter of practice and not one premised on the provisions of the law, the requirement to appoint an independent Trustee may be dispensed with in the event that good cause is shown that the interests of creditors will not be compromised.
There is absolutely no requirement at law that a Trustee must be a professional, but that such person must be a major and have an appreciation of what is expected of them, the duties they are accepting and capacity to discharge such responsibilities.
The essence behind a Trust is for the Trust to own property in its own right so that such property does not form part of the estate of the Trust Founder. A Trust, however, does not have legal personality. The Trust can therefore acquire and accumulate properties and assets as a separate entity from the Trust Founder and persists even after the Trust Founder has passed on.
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