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Wills & Estates

Why should you have a will?

By writing a will you guarantee that your assets are dealt out in accordance with your wishes after you pass away. This is called “freedom of testation” and is protected by law.

Why should an attorney make up your will?

Attorneys can counsel you regarding any problem that may arise with regards to your will. Attorneys have the necessary knowledge and skill to make sure that your will is valid and complies with your demands. Often a will is not valid because the person who drafted it did not have the necessary legal knowledge to make sure that the requirements of the law are adhered to.

What will happen to your estate if you pass away without a valid will?

If you pass away before you can draft a valid will, all your assets will be circulated according to the stipulations of the Intestate Succession Act. The rules set out by this Act are generally regarded as fair and make sure that your possessions are reassigned to your spouse and/or children.

However, the following issues might occur if you pass away without leaving a valid will:

  • It can take a very long time to appoint an executor. This executor may be somebody you may not have chosen yourself.
  • Your assets might not be given to the person of your choice.
  • There can be unnecessary extra costs.
  • There may be discontent and fighting among family members due to the fact that there are no clear instructions on how to allocate your assets.

 

 

Estate planning is an essential part of financial planning. Your ‘estate’ means everything you own (your assets and any assets deemed to be yours) and do not own (your liabilities). Estate planning is all about how you intend to dispose of your assets (after paying off your liabilities) when you die. The more complex your finances, the more essential it is that you get expert advice.

Funeral Wishes Booklet

A useful booklet, recording a clear record of your funeral wishes, a source of important documents for legal and public records, and a permanent keepsake of your fondest memories to speak to future generations. Please complete this document and place in safekeeping together with your will and other important documents. Notify your next-of-kin where these important documents are located. View/Download

We are able to offer expertise in the following areas of the law:

  • Estate planning. The primary advantage of a living trust is that it allows for proper management and control of your assets after you die. In other words, it makes it possible for you to rule from the grave.
  • The freezing of value. The growth in the assets will occur in the trust, and not in your own estate, limiting the net value of your estate. In other words, you will limit the amount of estate duty you pay, as the assets will be held by the trust and not by you.
  • Tax planning. This advantage should be secondary and seen as a bonus, not as the primary motive to set up such a trust. There are many provisions in the Income Tax Act that will deem income to be taxed in your hands if the taxman believes that you are evading tax.
  • Preservation of assets after death. Living trusts allow for the ongoing management of your assets, including contractual arrangements. This is particularly useful in a business arrangement where value could be lost by selling off a business share.
  • Protection of assets from creditors. Your personal liability is limited to the assets in your name. Your creditors can not access the assets in your trust, unless it was set up with the intention to defraud creditors.
  • Assets are protected against spendthrift children, who will not be able to go on a spending spree and reduce the assets to nil.
  • Protection of a vulnerable spouse and minor and/or vulnerable children, particularly if a child is incapacitated in some manner.
  • Assuring rapid access to income and capital after your death.
  • Payment to beneficiaries can be delayed for up to a year in the winding up of your estate.
  • Multi-ownership of assets. It is not easy to divide some assets, such as a business, a farm or other property, between heirs. By placing the assets in a trust, it can be held intact, while your heirs can be the beneficiaries of the income generated by the asset.
  • Confidentiality. On your death you will become a public document. However, because a trust does not become part of your estate, the assets held in the trust remain confidential.
  • Cost saving. The assets in the trust are not subject to any of the fees or costs of winding up an estate, but there can be significant costs in the ongoing administration of a trust.

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Tel: +27 (0)11 646-0335
Email: info@bmalaw.co.za

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