There are a number of legal consequences which arise from one’s death and one should plan properly so as to not create hardships for loves ones who survive you.

LEGAL CONSEQUENCES OF DEATH

Upon death ones estate terminates and vests in an estate.

This estate needs to be administered by an appropriately appointed person, the Executor, and distributed either in accordance with the terms of one’s will or the law.

If one dies without a will then he dies intestate and the distribution of one’s estate will be dealt of in terms of the Provisions of the Intestate Succession Act of 1987.

If one dies with a will the Intestate Succession Act will not apply and the provision of one’s will, will convene the distribution of your estate

WHY ONE SHOULD HAVE A WILL

Although the rules of Intestate Succession are logical in that they provide for close family members to inherit from each other, they do not always provide for the particular wishes of an individual.  More importantly, in the absence of a will it is necessary for someone to apply to be appointed as the Executor and that person may have to file security with the Master of the High Court.  If one nominates an Executor in a will and provides that they need not file security this avoids this inconvenience and assists in expediting the process.  If children are born to the marriage it becomes essential to have a will.  Children inherit in terms of Rules in intestate succession but any benefit which they inherit would not accrue to them until they reach the age of majority (eighteen).  Should you die before your children reach the age of eighteen then any benefit due to them will therefore be held by the State in a fund known as the Guardians Fund until they turn twenty one.

It is far more practical and prudent to create a trust in ones will to cater for the possibility of your death while your children are still minors.   In such circumstances one would appoint trusted family members or friends as trustees to administer the trust funds for the benefit of your children to ensure that they derive maximum benefit from these funds during their formative years.  The trust terminates at a nominated point and children acquire the benefits once they are old and mature enough to deal with these.

PREPARATION OF WILL

Kuilman Mundell & Arlow will advise on the preparation and concluding of a will.

The preparation of the will is a fairly simple process.

Unlike an Ante Nuptial Contract a will, although it is a formal document, does not need to be registered at the Deeds Office or any public office. It simply needs to be signed by the parties in certain prescribed circumstances.

The prescribed circumstances are fairly simple namely:

  • A person must be of sound and sober senses at the time they execute the will;
  • A will must be witnessed by two witnesses over the age of 16 who are in their sound and sober senses at the time of execution of the will. The witnesses must not benefit in terms of the will.

EFFECT OF A WILL ON INSURANCE POLICIES

It is important to bear in mind that an Insurance Policy is an agreement between yourself and the insurance company and as such the provision of one’s will does not affect the terms of the insurance policy. If one drafts a new will and changes the beneficiaries in the will this will not change the nominated beneficiary in the insurance policy. Should you wish to change such beneficiary it is necessary to make formal arrangements with the insurance company to do so.

ADMINISTRATION OF ESTATES

Administration of estate process is a fairly laborious process.

The process is undertaken subject to the supervision of the Master of the High Court, a Government appointed official tasked with ensuring that the Receiver of Revenue is paid, debtors of the deceased are paid and that any residue is paid to the nominated beneficiaries of the will. He is also tasked with the sanction of setting up any trust which is created in terms of the will.

The process requires the reporting of the debt of the deceased to the Master of the High Court, advertising for debtors and creditors in the press, contacting banks and all institutions holding assets for the deceased, gathering such assets into the name of the estate, paying the Receiver of Revenue and Creditors and then distributing the balance to nominated beneficiaries in terms of the will.

During the course of this process the Executor is required to draft a Liquidation and Distribution account which then is submitted to the Master of the High Court for approval. This account reflects the assets of the deceased all the liabilities of the deceased and how the funds are to be distributed.

This account is submitted to the Master of the High Court for approval and there after it lies for inspection at the Local Magistrates Court. It is required to advertise this fact.

Finally after the account has lain for inspection and there have been no objections, the Executor pays out the proceeds to the beneficiaries, obtain receipts from the beneficiaries and the estate is wound up.

MINOR ESTATES

If an estate is worth less than a R125 000.00 then the above mentioned procedure is not followed and the Master of the High Court will provide a person who holds position equivalent to that of the Executor with Letters of Authority to wind up the estate and do a simple reconciliation.

Where estates are in excess of a R125 000.00 it is recommended that one contacts an appropriately qualified expert such as an attorney to wind up the estate on their behalf.