Estate Planning and Marital Property
Estate planning allows families to plan their inheritance and it allows spouses to protect each other from debt incurred by one of the parties. We offer the following services with regards to estate planning.
- Change of Matrimonial Property System / Post Nuptial Contracts
- Marrying out of Community of Property / Ante Nuptial Contracts
- Administration of Deceased Estates
Section 21(1) of the Matrimonial Property Act 88 of 1984 provides as follows:
(1) A husband and wife, whether married before or after the commencement of this Act, may jointly apply to a court for leave to change the matrimonial property system, including the marital power, which applies to their marriage, and the court may, if satisfied that—
(a) there are sound reasons for the proposed change, for example, the husband and wife were not aware of the fact that they were deemed to be automatically married in community of property when they got married;
(b) sufficient notice of the proposed change has been given to all the creditors of the spouses via registered post. The parties’ intention to change their marital property regime shall be given to the Registrar of Deeds and shall also be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard;
(c) no other person will be prejudiced by the proposed change, for example, creditors’ rights to recover against the parties in terms of existing agreements must be addressed in the application. Hence, the application must give sufficient insight into the parties’ financial circumstances as at the time the application is made.
In our law, a marriage that is not entered into out of community of property in terms of an ante nuptial contract by which community of property and community of loss are excluded, is deemed to be entered into in community of property. This means that the spouses have one, joint estate as opposed to separate estates and as such, each spouse is jointly and severally liable for the debts of their estate.
Every marriage out of community of property in terms of an ante nuptial contract by which community of property and community of profit and loss are excluded is subject to the accrual system. The ante nuptial contract can however expressly exclude the accrual system. The accrual of the estate is the amount by which the estate of a spouse estate has increased since the date or commencement of the marriage. In other words, the net value of the spouse’s estate at the dissolution of the marriage less the net value of the spouse’s estate at the commencement of the marriage.
If the accrual system is not excluded, then should the marriage dissolve, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses.
We assist with the reporting and finalizing of deceased estates which includes having us appointed as an Executor where the deceased has not appointed an Executor or does not have a will. Where the deceased has left a will, we assist the heirs and beneficiaries with the distribution of any property and assets in terms of the provisions of the will.
Appointment of an Executor
In estates where the assets are valued more than R125 000, or where the estate is insolvent, an Executor is appointed by the Master in whose jurisdiction the deceased was resident at the time of his or her death. This is normally the person named in the will as Executor, or if there is no will, the person nominated by the heirs. It should be noted, however, that if the Executor is a lay person, and not an Attorney, Trust Company or Accounting Firm, the nominated person, unless exempted by the deceased’s will, will be required to lodge security to the full value of the estate unless the person is the parent, spouse or child of the deceased.
The executor is entitled to the following fee:
- on the gross value of assets in an estate: 3,5%;
- on income accrued and collected after death of the deceased: 6%
Provided that the remuneration in respect of any deceased estate shall not be less than R350.
The executor is also entitled to charge VAT on this fee, if he is registered as such, or if the agent appointed to assist in administering the estate, is registered as such.
If the original will of the deceased cannot be found
Where the deceased’s original will is missing or cannot be found, it is important to note that the Master will not accept a certified copy of a will. If the original will is not available, the estate will devolve according to the Intestate Succession Act, unless an application is lodged with the High Court calling for the acceptance of the copy of the will as a valid will and the High Court does in fact grant an order to that effect.