WILLS AND TRUSTS

Complex Wills

Appointing guardians
You can stipulate in your will that your children's inheritance be administered in trust until he or she reaches 21 years (or any later age that you may choose). Trustees manage assets in the best interests of minors. Guardians on the other hand look after minor children. Guardians are only called for if both biological parents are deceased.

Maintenance
If you should divorce your spouse, you may be obligated to pay maintenance. These obligations may be placed on your estate as well. Some of the issues that may come to the fore:
If a spouse is left needing maintenance, he or she could lodge a claim against your estate. Factors that may influence such a claim are inter alia the duration of your marriage, the age of the living spouse, his or her ability to find work, the degree to which he or she has assets to put towards own care, the extent of your estate and the degree to which your spouse contributed to that estate.
In terms of our laws, you have an obligation as a parent to look after your children – until they are self-sufficient and not necessarily until they're 21. The fact that your child may have been born out of wedlock will not stand in the way of a maintenance claim against your estate.

A testamentary trust is by far the best mechanism to comply with all maintenance demands. By placing a capital amount in a trust that can generate sufficient income, the maintenance claim will be served and the capital also protected for your eventual heirs.

Disabled dependants
Disabled dependants require greater care, for which you should make provision in your will. A trust is an ideal vehicle for this. Objective trustees that will administer the disabled person's inheritance in trust will be able to fulfil in this need.

Estate duty payable
Where the possibility exists that estate duty may be payable at your death, it is important to do a proper estate planning. Firstly make sure that you lessen the tax through proper planning of your estate. Ensure that there is sufficient cash to pay this tax; otherwise it may lead to the forced sale of estate assets.

Living together
In cases where you live together with another person, both parties frequently contribute to the household (as with a marriage) and collection of assets without registering any assets on both parties' names or fully accounting for assets. The identification of assets therefore is very important.

To avoid friction and fighting amongst heirs, it is advisable and practical that you and your friend decide together how your assets will be inherited. This doesn't necessarily mean that you have to have a joint will.

Offshore assets
If you should have offshore assets when you die, you'll also have a foreign estate that will have to be administered. Each country has its own legislation dealing with inheritance and the signing of wills. Your South African will won't necessarily meet with the legal requirements of the country where your assets are. That might mean that your foreign assets won't be inheritable in terms of your only will.

It is important therefore that you should have more than one will: for your South African assets and for your foreign assets, which complies with the laws of the country where your assets reside.

Common-law marriages
Die matrimonial law in terms of which the couple is married has a major influence on the inheritance of their assets. In traditional marriages and those conducted according to own customs, the inheritance of assets is usually influenced by very complex rules. Some of these rules could be bypassed by drafting a valid will.

Second and third marriages
Second and third marriages require careful planning of your will. The relationship between the stepchild and parent is a potential source of conflict. The second spouse and the children from the first marriage should ideally inherit separate assets.

Organ donation
If you want to donate organs, it should not be stipulated in your will. Your will only comes into effect after your death. Organ donation is only of value if you are declared brain dead while your body is still functioning. Your next of kin will therefore have to give permission for an organ donation. Make sure you pass on your wishes to them.

Funeral arrangements/cremation
It is not advisable to describe your wishes for your funeral arrangements or cremation in your will. The content of your will is frequently only read after the funeral, which makes it too late to see to your wishes. Rather convey such wishes to your next of kin before your death.

Provisions clauses
Provisions clauses linked to an inheritance that had not been properly thought through could leave an heir severely hamstrung even though it was not the intention.