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In2 Estate Planning and Trusts

Will with Pen

Wills

Did you know that approximately 86% of South Africans haven’t made plans for their death? Do you have a valid and up-to-date Will?

Dealing with the death of a loved one is stressful and painful enough and if your financial affairs aren’t in order when you die, you will add to the stress and trauma of those you leave behind.

Regardless of your net worth, it is important to have a basic estate plan in place. Through an estate plan you can ensure that the goals that you have set, especially as regards provision for your family (or survivors), and the strategies that you’ve implemented to achieve these, will be realised and achieved after you die. It also takes care of the estate related costs, such as estate duty and capital gains tax. Our representatives can assist you in ensuring your planning needs are taken care of.

A will stipulates exactly how you want the assets you’ve accumulated over your lifetime to be distributed after you die. Making a will allows you to name your heirs or beneficiaries, provide detailed instructions about what each beneficiary must receive, and select the executor of your estate. But, above all, it represents financial peace of mind for you and those you leave behind.

Your last will and testament is one of the most important documents you will ever sign during your lifetime and is therefore a vital part of estate planning.

Your estate refers to everything you own and owe, from property and motor vehicles to investments and debts. Systematic estate planning will ensure that your estate is set up in a tax-efficient way that benefits you during your lifetime and your beneficiaries after you die.

Do you know what happens if you die without a Will?

If you don’t have a Will in place when you pass away, you die ‘intestate’. What then happens is the courts take over and create a ‘Will’, according to the laws of the country on your behalf, and divide the assets between the spouse and children. While all this is happening, funds for your burial and loved ones’ day-to-day expenses can be frozen for months by the court if your bank and brokerage accounts are in your name only. Apart from the time-consuming hassle and inconvenience you are going to put your loved ones through, dying without a Will could also result in costing the Estate thousands in unnecessary expenses. And this is in addition to the potential additional estate administration costs.

You must appoint an executor in your Will. The executor is responsible for ensuring that the terms of your Will are carried out and that your estate is managed in line with prevailing relevant legislation. Ideally this should be a professional person or trust company, which specialises in the drafting of wills and administration of deceased estates.

Click here to download a will to complete – coming soon.

Trusts

A well-planned trust represents an effective solution to transferring your assets (pre- or post-mortem), looking after your loved ones, and reducing tax on your death. A trust offers an efficient and flexible way to ensure that your assets are preserved, objectively managed, and controlled by your chosen trustees in the best interests of the people that you have chosen to receive benefits. Your needs are unique and your trust can be designed to meet your specific requirements.

In South Africa, there are basically three types of trusts. These are:

  • Living trusts (also called inter vivos trusts) – There are two types of living trusts in South Africa, namely vested trusts and discretionary trusts. In vested trusts, the benefits of the beneficiaries are set out in the trust deed, whereas in discretionary trusts the trustees have full discretion at all times about how much each beneficiary is to benefit.
  • Testamentary trusts – Testamentary trusts are created at the winding up of a deceased estate following a specific stipulation in the deceased person’s will that a trust must be set up. Testamentary trusts are usually created to hold assets on behalf of minor children, since they cannot, in terms of South African law, inherit anything (in the absence of a trust, assets from the deceased estate left to minor children are sold, and the money is paid to them when they reach majority).

Benefits of a Trust

The two main advantages of having assets in a trust are:

  1. Asset protection (Protection of assets from creditors)

In an ideal situation, since assets held by the trust aren’t owned by the trustees or the beneficiaries, the creditors of trustees or beneficiaries can have no claim against the trust (although there are exceptions). A common scenario of using living trusts for asset protection is that of a husband and wife acting as trustees along with a third unrelated trustee. The trust is granted a loan equal to the value of the couple’s assets, then the trust buys their assets using the loan, and finally the trust pays off the loan over time.

  1. Continuity (A trust can span multiple generations)

When any of the trustees die, the trust and any assets owned by it, remain unaffected. Upon the death of a beneficiary, only the portion of the trust assets that vests in that beneficiary upon date of death would form part of the beneficiary’s estate and for estate duty purposes.

There are also disadvantages such as additional expenses and administrative requirements so setting up a trust in the correct way is vital.

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