Administration of Estates, Trusts & Wills
The legal and practical implications of estate administration, estate planning, the drafting of a will, the administration and drafting of testamentary or inter vivos trusts, and the administration of deceased estates, renders it sensible to consult an attorney specialising in the administration of estates.
When considering the various legal requirements of estate administration – that have to be met when determining the particulars of a legacy – it becomes apparent why expert advice is needed in the handling of these affairs.
The management of a legacy should be a priority on which no effort is spared. Most of us have, at some point, regretted experimenting with our own DIY-techniques first, like not calling a plumber from the get-go.
Matters involving the security of loved-ones, or the fulfilment of a deceased’s final wishes, should be done correctly and with the necessary knowledge, the first time around.
Who to contact
Attorneys specialising in the planning and administration of estates, possess the required expertise to handle all your estate related matters. They are familiar with the processes which need to be followed and the requirements which have to be met. Attorneys have a strict code of conduct to which they must adhere. Your affairs will be handled in compliance with this code, thus ensuring that some of the most important factors of your life are treated with due care and diligence.
Drafting of wills and estate planning
The Wills Act, 7 of 1953, prescribes certain formalities which must be adhered to for a will to be valid. It also states that witnesses signing the testament, the drafter of the will, and the spouses of these persons may not receive any benefits from the will. Failure to comply with these formalities, and the exclusion of the mentioned persons, may be rectified by a court of law, but considering that the application may only be brought before a division of the Supreme Court, and that the costs involved in such a process are high, it is advisable to have a proper will drafted by an attorney. Having a valid will is, therefore, essential, but your loved ones should also be able to find it after your passing. In the words of Michael Gill, “Where there’s a will, there are relations”. When a will is drafted by an attorney, the attorney will keep the original or a copy of the will, which is a sure-fire way of guaranteeing that your loved ones will know where to find it and carry out your final wishes.
Administration and drafting of inter vivos trusts
There are pros and cons to the establishment of a trust. An attorney can explain these to you properly, which will allow for careful consideration when choosing the best option. It is also not a bad idea to appoint an attorney as the sole trustee, or one of the trustees. A trustee has a great many duties to carry out, and can be held legally responsible for not 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 maximally.
Administration and drafting of testamentary trusts
A 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.
Estate Administration – Administration of deceased estates
The administration of an estate is a complicated process. Various steps have to be taken, in the correct order, to ensure proper compliance with the Administration of Estates Act, 66 of 1965. The Master of the Supreme Court must also be supplied with the proper liquidation and distribution accounts of the estate. Unless you have received training in the drafting of these accounts, you will need an attorney to do it for you. It is therefore advisable to appoint an attorney as the executor of a will, or for the appointed executor to obtain legal advice when administering an estate.
Ensuring that your loved ones are kept happy and secure when you are no longer there affords you peace of mind, especially when you are certain that all your affairs will be handled properly and with due diligence. It is an irrefutable fact that these documents – which are some of the most important pieces of paper you and your loved ones will need, both in life and death – require expert drafting and handling to ensure a hassle-free estate administration. Legal processes and documents are often difficult to understand and carry out. Will Rogers spoke the truth when he said that the minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer. So, make sure that all your bases are covered by consulting an expert attorney regarding your estate planning – that way you can rest peacefully until you rest in peace.
~ Natasha van Greuning (LLB)
The Master’s Branch is there to serve the public in respect of Deceased Estates, Liquidations (Insolvent Estates), Registration of Trusts, Tutors and Curators.
Where the deceased was living in the Republic of South Africa, the estate must be reported to the Master of the High Court in whose area of jurisdiction the deceased was living at the time of his/her death.
Estate Planning involves much more that merely buying more life insurance.