Having a valid will is essential. As prescribed by The Wills Act, certain formalities must be adhered to for a will to be valid.
A Mortis Causa trust is set up in the will and only comes into existence after the death of the founder.
An Inter Vivos trust is a handy estate planning tool for building an estate during the lifetime of the founder.
The matrimonial property system chosen by a couple forms the cornerstone of their future estate planning.
The administration of an estate is a complicated process and it is advisable to appoint an attorney as the executor of a will.
Curators and Trustees can be appointed by the Court to administer or wind up certain estates such as insolvent estates.
If you have a spouse, children or people that depend on you to take care of them financially or physically, you probably need a will. There is a misconception that the purpose of a will is purely to let the world know where you want your assets to go to when you die. In reality, a will regulates not only the distribution of your assets, but also issues such as who you would trust to administer your estate as the executor.
Who do you trust to take care of your children? Does this person also have the ability and skill to manage the money that you leave behind for the benefit of your children?
So, if you have anyone that depends on you, you most likely need a will.
Many people have trusts that they are not entirely sure what to do with. In some cases a trust is taxed heavily but could offer protection against creditors. If the trust is not set up and managed properly, you may very well suffer the burden of extreme taxation, while never really profiting from the benefits of the trust.
We only suggest the use of trusts to persons who have a true purpose for the trust and have the required knowledge to manage the trust properly. Interested persons could however be taught how to use this extremely handy vehicle without burdening themselves too much.
The law does not specifically require that an attorney be involved in estate planning, the drafting of a will, the administration and drafting of testamentary or inter vivos trusts, or the administration of deceased estates. However, if one considers the various legal requirements that have to be met when determining the particulars of a legacy, it soon becomes apparent why expert advice is strongly recommended in the handling of these affairs.
a matter as important as the welfare and security of dependants, or the fulfilment of a deceased’s final wishes, should be done correctly and with the necessary knowledge, the first time around. Specialist administrators of estates have the required skills to manage estate matters, and are familiar with the processes which need to be followed and the requirements which have to be met.
We believe in using the legal structures available to you in such a way that you get the perfect solution to your unique needs. Whether you are structuring for protection against insolvency, tax or in an heir-friendly way, we can give you the guidance and advice you need.
"The only two certainties in life are death and taxes"Benjamin Franklin
"The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer."Will Rogers
"The best thing about the future is that it comes one day at a time."Abraham Lincoln
A Mortis Causa trust, or testamentary trust, is established by a will, and its validity is clearly linked to the soundness of the will. The attorney tasked with the drafting of the will, will ensure that the trust is drawn up to meet the specific needs for which it is created.
He or she will also explain to the testator all the implications the trust has for the testator’s beneficiaries. In the case of a testamentary trust, it is once again worthwhile to appoint an attorney as a trustee, because attorneys have to comply with the Attorney’s Act, 53 of 1979, which prescribes strict regulations for the separation of trust money and the attorney’s personal accounts.
The pros and cons to the establishment of a trust will be explained to the founder by the attorney, which will allow for careful consideration of the options available. It is also not a bad idea to appoint an attorney as the sole trustee, or one of the trustees. A trustee has many duties to carry out, and are legally responsible for fulfilling these carefully and diligently.
The administration of trusts is a burdensome undertaking; for attorneys, however, it is an everyday task. The tax implications of trusts, and the best way to distribute trust income to the beneficiaries (so that they may receive the greatest benefit out of tax exemptions), will be explained by the attorney. The terms of the trust can then be drafted in such a manner as to utilise these exemptions optimally.
Our offices are situated in Clearview Office Park and easily accessible with ample secure parking.
Carter Smith Attorneys
Block B, First floor, Unit 2
Clearview Office Park
77 Wilhelmina Avenue
Int Tel: +27-(0)11-375 4022
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