Trusts & Estates Law

A will is the best way to ensure a level of control after your death. You can appoint an executor and ensure that your assets devolve upon your chosen heirs. Your choice of executor is important as this person is responsible for taking control of your assets and ensuring that your obligations are met from a legal perspective, as well as ensuring ultimate distribution to your chosen heirs.  Without a will, your heirs are prescribed by legislation, and those heirs dictate as to the executor to be appointed, failing which the Master of the High Court will make a decision in this regard. A will also allows you to make specific provision for minor or incapacitated heirs and ensures against inheritance having to be paid to the Master of the High Court. Estate planning involves consideration of your specific facts, including, inter alia, the nature and location of your assets, your legal and personal obligations, and the age, location and needs of your heirs. Estate planning also involves the structuring of your assets to limit exposure to tax and estate duty (including the equivalent foreign taxes if you have assets abroad). The importance of a properly considered and drafted will, as well as a comprehensive estate plan, cannot be overstated.

Trusts can be an effective estate planning tool if set up and administered properly. Trusts exist separate to the individual, so your death has no bearing on the continued administration thereof. They provide insulation against creditors and limit exposure to taxes upon death. Control and management of trust assets is undertaken by trustees, who ensure the protection and growth thereof for the benefit of the beneficiaries set out in the trust deed. It follows that your choice of trustees is of vital importance. While trusts have value if correctly established, failure to manage them properly can result in various penalties and unintended tax consequences. There are numerous obligations placed on trustees in terms of various legislation, and the risk involved in acting as trustee must be carefully considered. Professional assistance is also often required and the costs involved in administering the trust, as well as the associated obligations and risk, must be weighed against the benefits thereof. Specialist advice is strongly recommended.

The death must be reported to the Master of the High Court. Depending on the value of the estate, an executor or representative must be appointed by the Master. This person is responsible for taking control over your assets and ensuring the correct and lawful administration of your estate and ultimate distribution thereof to your heirs. If the estate is less than R250,000 in value, a shortened and simplified administration process is followed. If it exceeds R250,000, professional assistance is required to ensure compliance with the Administration of Estates Act 66 of 1965.

This question must be considered within your greater estate plan. There is no simple answer, and advice must be tailored to your specific facts. The documents governing your business (shareholders' agreements and MOIs, for example) must be considered, as well as the key role players within your business. A business succession plan is a bespoke document, which may be included in a will where appropriate, and is drafted to ensure that your business may operate without interruption upon your death. This includes interim measures before an executor is appointed for your estate, as well as who will be responsible for the business while your estate is under administration. A properly drafted will is also important to ensure that you executor is given adequate power to implement your business succession plan.

Yes. Cliffe Dekker Hofmeyr specialises in estate planning and deceased estate administration. We take a holistic approach to estate planning, which ensures that a golden thread is woven between your affairs while alive, and after your death during the administration of your estate.