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.
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.
require greater care, for which you should make provision in your
will. A trust is an ideal vehicle for this.
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.
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
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.
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
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.
Die matrimonial law in
terms of which the couple is married has a major influence on the
inheritance of their assets.
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.
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.
Also contact the
Foundation for Organ Donors toll-free on 0800 226611 for more
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 linked to an inheritance that had not been
properly thought through could leave an heir severely hamstrung even
though it was not the intention. If you are unsure of attaching any
provisos to an inheritance, rather get advice from an expert.
Sanlam Trust can help.