Estate Planning Attorney

Succession refers to the transfer of a deceased person’s assets to their heirs and/or beneficiaries. When a person dies, their estate must be wound up, debts must be paid and the balance of their assets distributed in accordance with the law, or their will if they have one.

The law that governs succession in South Africa is the Intestate Succession Act of 1987, which sets out the rules for the distribution of a person’s assets when they die without a valid will. If a person dies with a will, the assets will be distributed according to the instructions in the will, provided that the will is valid and complies with the law.

A Estate Planning Attorney can assist in ensuring a valid will is in place.

Control over asset distribution
A will allows you to control how your assets will be distributed upon your death. Without a will, your assets will be distributed according to the rules of intestate succession, which may not be in line with your wishes. Without a well drafted will, there may be disputes among family members over who should inherit which assets.

Appointment of an executor
A will allows you to appoint an executor to administer your estate and ensure that your wishes are carried out.

Minimize taxes
A will can help minimise tax on your estate (estate duty) by ensuring that your assets are distributed in a tax-efficient manner.

Protection of minor children
A will allows you to appoint a guardian and caregiver for your minor children and makes provision for their care and upbringing.

Creation of a Trust
You can create a testamentary trust in your will in order to protect assets for the benefit of chosen beneficiaries or minors.

Dealing with your remains
You can direct that your remains be buried or cremated.

Speak to a Estate Planning Attorney to ensure your property and assets are distributed according to your wishes.

To obtain a copy of a will in South Africa, you will need to follow these steps:

1. Find out where the will is stored
   The original will may be stored with the executor of the estate or at a law firm, bank or storage facility. You may need to contact various institutions to find out where the will is being held.
2. Request a copy of the will
   Once you have located the original will, you can request a copy from the executor of the estate or the institution that is holding it. You may need to provide proof of your identity and your relationship to the deceased.
3. Apply to the Master of the High Court
   If you are unable to obtain a copy of the will from the executor or the institution that is holding it, you can apply to the Master of the High Court for a copy. You will need to complete an application form and pay a fee. The Master of the High Court will then issue a certified copy of the will.

In South Africa, the term “next of kin” is not typically used in the context of wills. Instead, the law focuses on the concept of heirs and beneficiaries. The beneficiaries who are named in a will are typically the people who will inherit the assets of the deceased person.

However, when a person dies without a will, the rules of intestate succession will apply to determine who the heirs are. In this case, the next of kin of the deceased person may be entitled to inherit from the estate.

The term “next of kin” refers to the closest living blood relatives of the deceased person. This can include the spouse, children, parents, siblings, and grandparents.

It’s always advisable to consult with a qualified Estate Planning Attorney to ensure that your wishes are carried out and that your estate is distributed according to your preferences.

Beneficiaries of a will have various rights depending on the specific circumstances of the case. Generally, beneficiaries have the following rights:

1. Right to receive their inheritance
   Beneficiaries have the right to receive the assets which have been bequeathed to them in the will. The executor of the estate is responsible for ensuring that the assets are distributed according to the terms of the will.
2. Right to information
   Beneficiaries have the right to access information about the estate, including the assets and liabilities of the estate, the progress of the administration process, and the actions of the executor.
3. Right to challenge the will
   If beneficiaries believe that the will is invalid, they have the right to challenge the will in court. This could be due to concerns about the mental capacity of the deceased person, the undue influence of others, or other issues which affect its validity.
4. Right to participate in the administration process
   Beneficiaries have the right to participate in the administration process of the estate, which includes attending meetings, providing input and raising concerns.
   
5. Right to claim against the estate
   If a beneficiary has a claim against the estate, such as an unpaid debt or an outstanding loan, they have the right to make a claim against the estate.

The rights of beneficiaries may be subject to various legal requirements and procedures. It’s always advisable to consult with a qualified Estate Planning Attorney to understand your rights and obligations as a beneficiary of an estate.

Beneficiaries of a will are entitled to receive information about the estate, including its assets and liabilities. This includes bank statements of the deceased estate, as they form part of the financial records of the estate.

However, beneficiaries do not have an automatic right to access bank statements on their own. Only the appointed executor is entitled to receive the deceased’s documentation from institutions. Beneficiaries will need to make a formal request to the executor of the estate, who is responsible for administering the estate and ensuring that the beneficiaries receive their entitlements.

The executor will generally provide beneficiaries with a detailed report on the assets and liabilities of the estate, including bank statements, as part of the winding-up process. Beneficiaries may also request additional information or clarification if necessary.

Note that the executor has a duty to act in the best interests of the estate and all beneficiaries and to maintain confidentiality in respect of the estate’s affairs. As such, the executor may need to assess the validity of any requests for information and may need to seek legal advice before disclosing certain information.

Certain individuals may not be able to benefit from a will if they fall under the following categories:

Minors
Individuals who are under the age of 18 cannot inherit cash lump sums directly from a will. Instead, their inheritance must be paid to the Guardian’s Fund (Administered by the Master of the High Court) or held in trust for them until they reach the age of majority.

Witnesses to the will
Anyone who witnesses the signing of the will cannot benefit from it. This is to prevent any conflicts of interest or suspicions of undue influence.

Individuals who were disinherited
If an individual was specifically disinherited in the will, they cannot benefit from the estate.

Individuals who predeceased the testator
If a beneficiary passed away before the testator, they cannot benefit from the will. However, their heirs may be able to claim their share of the inheritance.

A person who caused the death or who stands to benefit from his own crime.

The rules regarding who can and cannot benefit from a will may vary depending on the specific circumstances. It’s always advisable to consult with a qualified attorney for guidance on drafting a will and ensuring that it is legally valid.

A will can be invalidated for several reasons. Here are some of the most common reasons:

Lack of testamentary capacity
The testator must have had the mental capacity to understand the nature and effect of making a will when they signed it. If they did not have this capacity at the time, the will may be decalred invalid.

Lack of proper formalities
A will must meet certain formalities in terms of the Wills Act in order to be considered valid. For example, it must be in writing, signed by the testator and witnessed by at least two competent witnesses.

Undue influence
If it can be proven that the testator was coerced or unduly influenced into making a certain provision in their will, that provision may be considered invalid.

Fraud or forgery
If the will was fraudulently executed or if someone forged the testator’s signature, the will may be invalid.

Revocation
A testator can revoke their will by destroying it, making a new will, or by any other act that indicates their intention to revoke it.

These are not the only reasons why a will may be considered invalid. The validity of a will may also be challenged on other grounds, and the court will consider all of the circumstances surrounding the making of the will when determining the matter. It’s always advisable to consult with a qualified legal professional if you have any questions or concerns about the validity of a will.

An executor can also be a beneficiary of the estate they are administering. However, it is important to ensure that there is no conflict of interest between the executor’s duties to administer the estate impartially and their own interests as a beneficiary.

To avoid any potential conflicts of interest, the executor should disclose their interest in the estate and should not participate in any decision-making that could affect their own share of the estate. The executor should also ensure that they act in accordance with their fiduciary duty to act in the best interests of the estate and its beneficiaries.

Some wills may contain provisions that prohibit an executor from also being a beneficiary, or may impose conditions on the executor’s ability to receive a benefit from the estate. If such provisions exist, they will need to be followed.

The time it takes to finalise an estate can vary depending on various factors, such as the complexity of the estate, the number of institutions involved, the number of beneficiaries involved, the capacity of the Master’s offices at the time and whether or not there are any disputes or claims against the estate.

In general, it can take anywhere from a few months to several years to finalise an estate in South Africa.

The process of finalising the administration of an estate involves several steps, such as reporting the death to the Master of the High Court, taking control of and valuing the assets of the deceased, paying any debts and taxes owed by the deceased, accounting to the Master for all assets and liabilities in the estate and eventually distributing the remaining assets to the beneficiaries. The length of time it takes to complete each step can vary depending on the complexity of the estate and any challenges or disputes that may arise.

Delays can occur during the estate administration process and it is therefore advisable to seek professional legal advice to help expedite the process.