Author: Design

You’ve Lost Your Title Deeds – Now What?

Written by Design on May 6, 2021. Posted in Conveyancing.

A Title Deed is a document that proves you are the legal owner of a property and is of utmost importance when you need to transfer the property. Once the purchaser’s bond has been approved when you sell your house, the Conveyancer will request the original Title Deed.

If this document has been lost, misplaced or damaged, you, as the Property Owner, have a means available to you through Regulation 68(1) of the Deeds Registries Act 47 of 1937, which allows you to apply for a certified copy to be issued by the Registrar of Deeds.

How to Obtain a Copy of Your Title Deed

For this process, you will need to sign an affidavit in front of a Notary Public, a specialist Attorney with knowledge of specific acts and processes, and legally empowered to witness signatures officially. Most attorney firms, such as AED Attorneys, employ the services of a Notary Public.

This affidavit must state the following:

Details of the lost Deed;
How it came to be lost, damaged or misplaced;
That a thorough search for it has been done;
Assurance that no one has detained it as a security for a debt;
That, should the original be found at a later stage, it will be provided to the Registrar of Deeds;

Missing Title Deed of Bonded Property

Should there still be a bond on the property, the bank that holds the bond will need to provide a letter stating that they were not in possession of the Title Deed and have no objection to you applying for a certified copy of another one.

Application Open for Public Comment

As an additional measure to minimise fraud, a further requirement was implemented in a Regulation amendment in 2019, stating that the application must first be advertised in the Government Gazette and a local newspaper where the property is located. For two weeks after that, the application will have to lie open for inspection by the public at the Deeds Office.

During this period, any person with a vested interest may object, in writing to the Registrar of Deeds, to this certified copy being issued.

Who May Apply For a Copy of the Missing Title Deed?

Only the owner/s of the property may apply for the certified copy. If there is more than one owner, then all signatures must be on the application document. Should the owner be deceased, as happens in many cases, only the Executor of the Estate who the Master of the High Court has appointed may make the application.

Once the process has been followed and completed, with no objections having been filed in the two weeks, the application for the issue of a certified copy can be lodged at the Deeds Office.

The copy will be printed with an endorsement stating, “Certified a true copy of the registry duplicate in terms of Regulation 68 of Act 47 of 1937 and is issued to take the place of the original“. The Deeds office will also record that a copy was issued.

In the event that you misplaced your Title Deed, contact AED Attorneys for assistance. We will provide you with further information on how to start this application process. We have a dedicated and efficient conveyancing team who can provide informed and professional advice on this matter, as well as many other property-related legal issues. In addition, our efficient in-house Master Consultant will attend to any other Master’s Office work required by the client.

AED Attorneys offers a personal touch and treat all our clients with patience and respect, no matter the size of the estate. Our staff are passionate, reliable and devoted to their work, placing emphasis on continuity and quality.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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Assisted Decision-Making – Dementia, Incapacity and Power of Attorney

Written by Design on March 11, 2021. Posted in Wills & Trusts.

Life is about making decisions. We make decisions all the time regarding where we live, work, how we take care of ourselves, where our children go to school, etc. Making our own decisions and exercising our choice is one way to express our individuality and exert control over our lives. Naturally, contractual affairs also form part of our daily decision-making process.

Our capacity to enter into legal contracts is closely tied to our mental state. For a transaction to be regarded as valid, the law requires that the relevant person can understand the nature and consequences of that transaction. We take it for granted that adults can make decisions about their welfare or financial matters. Unfortunately, some people are not in a sufficient mental state to make legal decisions, whether due to old age, dementia, disease, a stroke or similar.

However, in establishing and protecting their appropriate autonomy, the individual must be protected against abuse and exploitation. In South Africa, the law deals with this by using Curatorship, which has been criticised by some quarters for the many frustrations it causes.

An individual can appoint another person to act on his or her behalf through a Power of Attorney. However, should the person who granted the Power of Attorney become incapacitated, this power terminates – which is highly illogical. Obviously, this is a significant issue for caregivers, as it is common for ageing parents to appoint someone reliable as their Power of Attorney. In light of this the SA Law Reform Commission is currently investigating assisted decision-making, but this still has a way to go before anything concrete transpires.

Under the above-mentioned circumstances where the Power of Attorney falls away in the case of incapacity, it is essential to note that, if the agent acting on behalf of an individual does not cease to act on their behalf, then they are in fact acting without authority and risk personal liability.

In terms of Rule 57 of the High Court’s Uniformed Rules, in situations where an individual loses the ability to manage their affairs, the High Court can appoint a Curator Bonis to handle that individual’s financial matters. The Curator Bonis administers the estate of the individual according to the Court’s powers and functions, and they are ultimately accountable to the Master of the High Court. A Curator Bonis is allowed remuneration for their services. Accordingly, they are entitled to a maximum annual fee of 6% on the gross income generated from the assets and a once-off payment of 2% of the capital on the date the curatorship ends.

The appointment of a Curator Bonis is relatively expensive as it involves a High Court application with costs in the region of R60 000 to R80 000. The process itself is also rather arduous as well as taxing on the Curator. The Curator is required to submit annual accounts detailing all income received, expenditure incurred and provide all vouchers and receipts for transactions made for or on behalf of the incapacitated person. Unfortunately, as previously mentioned, many frustrations surround this appointment in terms of it being both costly and the innumerable delays caused by red tape.

A cheaper alternative involves the appointment of an Administrator by the Master of the High Court in terms of The Mental Health Care Act, 17 of 2002. This Administrator may only deal with the individual’s property and not their personal affairs. Also, it is only feasible in the case of mental illness or intellectual disability – and only for smaller estates with assets valued up to R200,000, with an annual income of up to R24,000. The diagnosis of a mental illness or significant intellectual disability will have to be confirmed by medical certificates or reports from a certified mental health care practitioner.

Since no High Court application is required for an Administrator’s appointment, the procedure is far less costly than a Curator Bonis appointment. This is because the applicant does not need to work through an Attorney, and the application fees charged by the Master in processing the application amount to no more than R2500. Administrators, like Curators, are governed by the Administration of Estates Act and are also entitled to their fee of 6% on income from assets and of 2% of the value of the capital when the administration is terminated.

In summary, the powers granted to a Curator Bonis or Administrator are primarily to administer the estate of the person who is incapable of managing their affairs and generally include the following:

To receive, take care of, control and administer all the assets.
To carry on/or discontinue, subject to any law which may be applicable any trade, business or undertaking.
To acquire, whether by purchase or otherwise, any property, movable or immovable, for the benefit of the estate.
To apply any money for the maintenance, support or towards the benefit of the person; to invest or re-invest any funds etc.

Once the individual dies, the curatorship or administration terminates, and the management of the personal and financial affairs are then handed over to the Executor of the deceased’s estate.

An alternative to the above is to consider setting up a trust to manage the individual’s financial aspects – obviously this needs to be performed while that individual still has legal capacity. However, trusts involve certain costs and taxes, as well as other implications. A recommendation was made to the SA Law Reform Commission in 2004 to consider an enduring or conditional Power of Attorney. However, nothing further has resulted.

In general, majors are presumed mentally and legally competent to manage their affairs until proven otherwise. When a person becomes incapable of managing their affairs, especially the administration of his or her estate, it is imperative that someone is legally appointed to assist that person who has become incapable, as a general or special power of attorney will not be valid. In terms of South Africa’s current legal system, no person may manage another person’s affairs without the required authority to do so.

AED Attorneys has the knowledge and experience to navigate these difficult situations. After making an appointment with them, they skilfully guide their clients through the various options available and explore the most suitable one for each individual’s unique requirements.

AED Attorneys understand that every situation is unique. Although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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Provident Fund Legislation – Changes from 01 March 2021

Written by Design on March 11, 2021. Posted in Deceased Estates Administration.

A well-structured retirement plan requires a thorough understanding of the available retirement options and their associated tax implications, as the South African retirement fund industry is complex and heavily regulated.

In addition, new legislative changes to South Africa’s provident funds were implemented on 01 March 2021 to create a consistent retirement fund system over all the funding options. These legislative changes hope to achieve this by smoothing out any inconsistencies and irregularities and making it easier for members to understand the intricacies of their funds.

South Africans are known to have a poor savings culture, and the government recognises this. Hence, this is one of the main reasons that has led the government to make changes to current legislation by providing tax incentives to ensure that provident fund members preserve their capital, rather than withdraw it all on retirement. Alexander Forbes Member Watch analysis shows that approximately 50% of their members retire with less than one-fifth of their final salary to live on in retirement.

In the explanatory memorandum that accompanied the Taxation Laws Amendment Bill of 2013, National Treasury (NT) stated that “A strong link exists between insufficient retirement income for retired members of provident funds and the lump sum pay outs made by provident funds at retirement. “In short, the absence of mandatory annuitisation in provident funds means that many retirees spend their retirement assets too quickly and face the risk of outliving their retirement savings. In view of these concerns, it is the government’s policy to encourage a secure post-retirement income in the form of mandatory annuitisation.”

Up until 28 February 2021, provident fund members were allowed to withdraw 100% of their benefits, subject to taxation on the non-exempt portion. This was in contrast to members of a pension fund who were only permitted to withdraw one-third of their benefits in cash. The remaining amount was to be used to purchase an annuity (pension) income.

With the new legislation in place, provident funds will now be subject to the same rules as pension funds at the time of retirement – except for members 55 years or older, who will remain unaffected for as long as they stay on the same provident fund. For members younger than 55 and new provident fund members, the new legislation will apply to any contributions made from 01 March 2021 onwards.

The purchasing of a pension will only be required if an employee retires from their current fund. Should they resign, be dismissed or retrenched, they are under no obligation to buy into a pension fund and retain the option to withdraw their funds in cash – subject to obligatory tax. For these reasons, financial advisors need to be fully cognisant of the legislative changes to advise their clients on various retirement option changes.

What Are The Obligations Of The Provident Fund Trustees?

The Trustees are required to exercise independent discretion in respect of the fund members and beneficiaries and ensure that all reasonable steps are taken to protect the fund members’ interests at all times. In addition, they are obliged to conduct an investigation to determine how many dependants the deceased has. Only once this investigation has been completed may the Trustee/s pay out the provident benefit. The obligation on the Trustee/s to investigate and trace all dependants is vital. If the Trustee/s fail to carry out this duty, they can be deemed to have acted negligently.

How Soon Are Trustees Required To Make Payments To The Beneficiaries?

Section 37C of the Pension Funds Act provides that the fund benefits must be paid out within 12 months of the death of the fund member. However, interim payments may be made to minor dependents or nominees, with certain provisions for interest. If the fund is unable to trace any dependants, it will pay the benefit out to the nominated beneficiaries, as per the member’s request in writing, or, if no dependant or beneficiary has been nominated or can be traced, then the fund will be placed into the deceased member’s estate.

What Are The Requirements With Regards To Ensuring The Legitimacy Of The Beneficiaries?

Even though a fund member may have nominated a beneficiary or beneficiaries, it is the responsibility of the Trustee/s to allocate and apportion these funds appropriately. This entails the Trustee/s to unequivocally determine who the legal dependants are and who should receive the benefits, so that no dependant is left without financial support. In the event of the death of a fund member before retirement from the fund, the benefit allocation will be made by the Trustee/s according to strict conditions laid out in the Pension Funds Act 24 of 1956. They will apportion and pay out the benefit fairly, based on the information provided to them. According to the Pension Funds Act, a legal beneficiary is described as:

Any person for whom the deceased is legally responsible for maintenance.
Any person for whom the deceased is not legally responsible for maintenance but was, in the trustees’ opinion, dependent on the deceased for maintenance at the time of their death.
The deceased’s spouse, including a party to a customary or civil union.
The deceased’s children, including a child born after your death, an adopted child and an illegitimate child.
Any person for whom the deceased would have been legally responsible for maintenance.

Another important change to legislation in terms of retirement benefits after 1 March 2021 and emigration, is that the criteria to determine whether or not a person can access their pension and provident fund money, will not be based on emigration but on ceasing to be a tax resident in South Africa. According to James Coutinho, a Senior Tax Advisor at Liberty Group, this would require demonstrating non-tax residency for an uninterrupted period of three years.

AED Attorneys occupies a very personalised space in the legal sphere, dealing specifically with three processes that often get lost in larger legal firms’ confusing production line, namely, Wills and Trusts, Administration of Estates, and Property Transfers.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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What Are The Benefits Of Leaving Assets To A Trust Fund?

Written by Design on February 26, 2021. Posted in Uncategorized.

When a person passes away, all their assets are placed into an estate administered by an Executor. These assets can include both moveable and immoveable property. Immoveable property relates to assets such as residential and commercial property. Moveable assets can be money in the bank, cars, furniture, jewellery, etc. The Executor will finalise all the administration needed to process the estate, pay the relevant taxes and Estate Duty and distribute the remaining assets to the beneficiaries.

What Is Estate Duty?

Estate Duty is a tax levied on the assets of a South African resident or on South African assets of a non-resident if the estate is valued above R3,500,00. Section 4 of the Estate Duty Act, 1995 specifies the various deductions that are allowed to determine the net value of the estate.

What Deductions Are Allowed Under The Estate Duty Act?

A tax exemption of R3.5 million is allowed on the entire estate before Estate Duties are calculated. Estate Duty is then payable on the remaining value of the estate at a rate of 20% on the first R30 million and 25% on the balance of the value over R30 million. If the estate’s value is under R3.5 million, SARS must still be notified of the deceased’s death.

What Happens to Assets Accrued After A Person’s Death?

Any income accrued up until the date of a person’s death is taxable. After their death, the Deceased Estate is formed. Any assets are held here until the liquidation and distribution have been finalised as per Section 35(12) of the Administration of Estates Act. Income that accrues after the date of death but before any assets being distributed to the beneficiaries is dealt with slightly differently under Section 25 of the Income Tax Act.

When Must Estate Duty Be Paid?

Estate Duty must be paid within 12 months of the date of death or 30 days from the assessment date – if the assessment has been issued within 12 months of the date of death. Late payments currently attract an interest of 6% per annum.

Who Is Liable To Pay Estate Duty?

As the estate administrator, the Executor is usually liable to pay the relevant Estate Duties. However, in some cases, estate duties may be payable by the beneficiary. This is particularly relevant when a policy is paid out to a beneficiary.

Who Can Establish A Trust Fund?

All South African citizens over the age of 18 may establish a trust. However, they need to be fully aware of its impacts and potential challenges. Many people feel that trusts are only for the wealthy, but there are still a number of benefits from property owners placing their immovable assets into a trust for their family:

As part of a trust, the property is not subject to inheritance tax as it no longer makes up part of the deceased’s estate.
A trust does not require an Executor, who may charge up to 3.5% of the estate’s value for their services.
A trust will provide for remaining dependants and minors.
The trustees administer the trust’s assets until the minor dependants come of age, or according to the trust deed’s specifications on the termination of the trust.

However, trusts are not without complications, and serious consideration of high tax rates, trustees and several other issues will have to be considered and thoroughly discussed with an attorney before setting up one. When a property is transferred into a trust, it is important to be aware of the fact that this property is now out of the owner’s control. Here are some thoughts to consider:

Many issues surrounding the setting up of a trust occur when the relationship between the founder of the trust and the trustee/s disintegrates. This can happen in the case of a relationship breakdown, so it is crucial to choose the trustee/s very carefully.
There are costs involved when initially setting up a trust.
If the beneficiaries need to use the trust to secure finance, it is worth noting that banks rate trusts as a higher risk than an individual.
Any future changes to legislation involving trusts are always possible and may limit the benefits they currently provide.
Any rebate an individual may have falls away when the asset is in the trust. For example, capital gains rebate on a primary residence.

Through AED Attorneys, proper estate planning helps to legally ensure that assets provide for family and loved ones, rather than the taxman. Here are some recommendations from AED Attorneys, but are by no means exhaustive:

Set up an Inter Vivos Trust

This is a living trust, created whilst an individual is still alive. It allows the trust owner to access their assets, which may be property, investments or cash while they are still alive. On their passing, the designated beneficiaries of the trust are granted access to the remaining assets and the trust is managed by a successor trustee.

Invest in a Retirement Annuity (RA)

RA’s are attractive from both an investment and estate planning perspective. The contributions are tax-deductible; they enjoy a tax-free grow on their value and are excluded from the deceased’s estate.

Buy Life Insurance

Life insurance can effectively fund any taxes due on the estate after death.

Leave R3.5m To The Trust

As mentioned earlier, estates worth less than R3.5m will not attract estate duty. Also, any amounts left to a spouse are free of estate duty and capital gains tax until the spouse sells the asset. Therefore, leaving R3.5m to the trust allows children to benefit from the estate duty exemption of both parents. Recent changes to the law have reduced this need, but leaving money to a trust should still be considered for growth assets.

While it is worth being informed about estate planning, it can get quite complicated. AED Attorneys helps clients set up Wills and Trusts to make provision for dependants and minimise estate duties legally.

AED Attorneys understands that every situation is unique. Although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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Surviving Spouses – What You Should Know About Tax and Estate Duties

Written by Design on February 26, 2021. Posted in Uncategorized.

When the definition of a “spouse” was introduced into the Income Tax Act No. 58 of 1962, the Estate Duty Act, and the Transfer Duty Act in 2001, it brought specific tax implications for spouses.

How does South African law define a spouse?

In terms of the definition of a “spouse” under South African law, it refers to a person who;

is the partner of another person in a marriage or customary union recognised by the laws of South Africa;

people in a partnership recognised as a marriage by any religion; and

people of the same sex or in a heterosexual union which has satisfied the SARS Commissioner about its permanency.

What taxes become due when a spouse dies?

Spouses enjoy a certain amount of leniency from SARS when it comes to donations between them and property transfer duties. Should their marriage break-up or one of the spouses die, the remaining spouse will not be liable for transfer duty on any property they jointly owned.

Also, Section 4q of the Estate Duty Act (Act 45 of 1955) stipulates that the value of all property bequeathed to the surviving spouse, either in respect of a Will or by intestate succession, is deductible from the gross estate of the deceased.

What Capital Gains Tax must a spouse pay?

When one spouse passes away, estate duty is not payable on any asset left to the remaining spouse. Neither is Capital Gains Tax payable on an asset’s disposal from one spouse to another. This is because the spouse who is the recipient is considered to have acquired the asset at a base cost equal to that of the deceased spouse.

What happens if the surviving spouse has not been provided for in the Will?

In instances where the surviving spouse has not been sufficiently provided for, they are entitled to claim from the deceased estate in terms of the Maintenance of Surviving Spouses Act 27 (1990).

What happens to the surviving partner if the couple was not legally married?

However, it is important to realise that the above exemptions only apply to partners who fall under the legal definition of a spouse. The decision as to whether the remaining unmarried partner will receive any pension fund benefits (if applicable) leaves them at the mercy of the retirement fund trustees. As per the Pension Funds Act, trustees must identify the deceased member’s dependants so that the funds may be fairly distributed.

Increasingly, many people choose to rather co-habit instead of formalising their union in a legal marriage under South Africa’s laws. Although there may be clear indications that partners can be considered as spouses in terms of the legal definition, the administration will prove challenging under the Fiscal Acts when one partner dies.

Examples of this would be such as when two people have been living together for many years yet have no intention of marrying each other, and one of them dies. There is usually strong evidence to prove that they were spouses by the legal definition under these circumstances. If established, they may be entitled to some of the financial benefits when their co-habiting partner passes away.

Therefore, it would be advisable for partners living together to record a Co-habitation Agreement to avoid any disputes arising in the event of a break-up or a death. In addition, both parties should also draw up their own Will wherein it states what each partner is to inherit from the other upon one of them dying.

How to prove a Life Partnership when one co-habiting partner dies

If no Co-habitation Agreement exists when one partner passes away, then the onus will be on the surviving partner to qualify as a spouse in the eyes of the SARS Commissioner. Three affidavits will be required from different parties confirming that the relationship existed for some time. Besides the three affidavits, the following may also prove useful as supporting documentation to establish the life partnership:

Co-habitation Agreement
Legal Will
Proof of joint ownership of fixed property or other assets
Proof of medical aid with the partner registered as a dependant
Any policies mentioning the partner as a beneficiary
Joint bank account

What is the impact of the Intestate Succession Act, 1987 (Act 81 of 1987)

If a partner or spouse dies without a Will, the estate falls under the law of intestacy, which means that the Executor [AD1] will divide the estate, according to a set formula, among any surviving children [AD2] and spouse first. If there are no children, then the estate will be given to the legal spouse, and if there is no spouse, then it falls to the deceased’s parents [AD3] . In this case, the surviving partner will not be able to inherit as a spouse, unless he or she was married to the deceased.

Failure to leave a Will behind may leave the surviving spouse or partner in a predicament, should the parents or children seek to take possession of the deceased’s assets.

AED Attorneys provides professional advice and assistance with the drawing up of Wills or Co-habitation Agreements which will help prevent most disputes should a spouse or partner pass away.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

[AD1]executor

[AD2] and spouse

[AD3] add: In this case a person that only lived with a partner will not be able to inherit as a spouse.

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How A Pandemic Changed Funerals in South Africa

Written by Design on January 22, 2021. Posted in Deceased Estates Administration.

As our President noted recently, funerals have become a death trap for many South Africans. Although it is deeply ingrained in all of us to provide a fitting send-off for our departed loved one, we are in the grip of a deadly pandemic. The typical funeral activities that usually occur are increasing everyone’s exposure to risk.

Accordingly, the COVID pandemic has changed funeral rituals, not only in South Africa but all over the world. The South African government was forced to introduce new measures to reduce the disease’s risk by curtailing traditionally large funerals.

Level 3 Funeral Arrangements

Some of the measures include limiting funeral attendance to a maximum of 50 people – all of whom must socially distance and wear masks. Night vigils and after tears/wakes are no longer allowed. The deceased must be buried or cremated quicker than before, and mortal remains are treated more clinically.

How Traditional African Funeral Rituals Are Affected

This change to long-standing traditions is particularly difficult for the African culture who embrace social support and community kinship. Most black South African funerals combine traditional African and Christian rituals, with many people in attendance. These people may or may not be known to the bereaved. They could be anyone from friends, family members, colleagues, or strangers who merely want to show their support and respect. All are welcome and often travel great distances to attend both the funeral and the rituals leading up to the funeral. The reason for these social calls includes repeated family visits, helping with funeral and catering preparations, counselling, etc. and are all performed in close quarters. In rural villages, graves sometimes need to be dug, with people often sharing the same picks and shovels.

Curtailing the Celebration Of The Deceased’s Life

Whatever the culture, whether the mourners gather to attend the church service or eat communally afterwards, these events are, without a doubt, ripe for transmission of COVID. Funeral services have adapted from virtually all-day events to a one to two-hour service attended by no more than 50 people. People can no longer embrace each other due to social distancing. The full splendour of funerals has been overshadowed by rules and regulations to ensure all mourners’ health and safety.

Missing Out on Important Closure

Every culture has its rituals and services when it comes to mourning. These rituals bring comfort, and notably, closure. One of the main challenges experienced by people who are grieving the death of one who has departed is the inability to mourn in the usual way and experience the traditional rituals that slowly help bring acceptance of death. This new normal may bring a need for professional counselling to help people gain closure in another way. Not being able to provide a proper sendoff for your loved ones, may result in Deferred or Complicated Grief in time to come. Emotions such as guilt and self-blame may also come to the surface for not being in a position to pay a proper last tribute due to the restrictions. We can refer you to qualified Grief & Bereavement Specialists on our panel.

Financial Impact of The Pandemic On Funerals

From a more positive perspective, the COVID pandemic has possibly reduced a family’s financial burdens by making funerals much cheaper. Elaborate and large funerals, which come with a high cost that is borne by the deceased’s family, are now no longer allowed. Families often expose themselves to enormous debt to pay for a funeral – especially if they don’t have a funeral policy or funeral cover. Traditional leaders often have to intervene in disputes between families and service providers when they are unable to meet their financial commitment to the service provider. COVID lockdown may well have positively intervened in a time where incomes are stretched to the limit, and financial respite is welcome in any form.

However, while costs are to be saved on catering, tents and smaller funerals, other expenses are cropping up. Some funeral parlours have had to increase their prices by up to 25% to cover COVID-related expenses such as; protection equipment, sanitising products, additional staff costs due to more workers being hired as deaths increase, and even additional cemetery charges by municipalities. Funeral parlours have also had to modify their vehicles to increase safety precautions during COVID which increases their overheads.

Will Funerals Return to Normal Post-Pandemic?

Nobody is sure if the “new normal” type of funeral created under COVID restrictions will last forever. Perhaps the financial relief from curtailed cultural expectations of an elaborate funeral will result in some permanent changes to how funerals are conducted once COVID is over? Or perhaps everything will revert to normal?

Secure Your Family’s Future After Your Passing

Whatever the outcome, having a funeral policy will always provide a safeguard against funeral expenses and provide loved ones with a measure of relief and the ability to mourn in peace without the financial burden of a funeral hanging over their shoulders. Life insurance will provide additional comfort in taking care of those financially dependent on the deceased and is often combined with funeral cover. When a loved one passes away, there are many financial matters that will need to be addressed pertaining to tax, legal and financial administration.

Funeral Policies in South Africa

Sonja Smith Funeral Group, which has branches across Gauteng, assists bereaved families with funeral arrangements, bringing the deceased into care, burials, cremations, financial matters after the funeral and offers unique funeral services and memorials. They also provide comprehensive funeral insurance plans that include;

Benefits of Elite Funeral Insurance Plan*:

Instantly paid claims
No medical examinations
Free repatriation of remains
Discount on coffin and services for policy holders
6-month waiting period for death claims as a result of Natural Causes
Maximum entry age 85 years

Additional Benefits of Elite Funeral Insurance Plan*:

Income protection
Refreshments benefits
Tombstones
Bereavement- & Trauma Counselling
Accidental death insurance

The Sonja Smith Funeral Group ensures that families receive the style and quality of service that their loved ones deserve. Our personalised service will guide you through all the planning and arrangements for a funeral. For further information or to obtain advice, contact Sonja Smith Funeral Group for empathy, efficiency and most of all, compassion.

Our offices are located across Gauteng in Benoni, Centurion, Fourways, Mayville, Meyerspark, Midstream, Montana, Moot, Moreleta Park and Roodepoort.

*Terms and Conditions apply to the Elite Funeral Insurance Plan. These are available on request.

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Should Your Pets Be Included in Your Will?

Written by Design on January 22, 2021. Posted in Deceased Estates Administration.

Animal shelters across South Africa are seeing an increase in the number of pets they are accepting, which can be attributed to their owners passing from COVID-19 or simply not being in a position to afford them anymore due to job losses and salary cuts.

In South Africa, a certain amount of protection is granted to animals under the Animal Protection Act of 1962. However, nothing is specified in the Act regarding what happens to your pets when you die, and many people don’t even consider this.

What Will Happen to Your Pet After You Die?

Before your pets are dropped off at an animal shelter after your death, perhaps it is time to rethink your Will?

Just as children can be included in your Will, so can your pets. There is no law prohibiting this, nor is there any law that prohibits pets from being beneficiaries of your Will. In the event of your death, you will need to consider what will happen to your pets, if they outlive you. Who will take care of them?

Estate Planning for Pets

Estate planning ensures that your loved ones, and in this case, your pets, are taken care of after your passing. To ensure that your pets are well looked after in the event of your early demise, the following points should be considered when you are planning your Estate:

Choosing a New Owner

When choosing someone to inherit your pets, they need to be willing and have the ability and space to look after them properly. The new owner may have to comply with relevant homeowner legislation depending on whether they live in a complex or a stand-alone home. If they are renting their property, their Landlord may not allow Tenants to keep pets. This clause may need to be regularly updated in your Will.

The person whom you choose should be responsible, trustworthy and love animals. Also, make sure that the needs of your pet/s will be met with whomever you choose. You may want to set up an informal written agreement with the person in the hope that your instructions will be carried out after your death.

Establish a Trust for Your Pet

Assigning a caregiver for your pet after your death is essential but, if possible, it is recommended that you create a pet trust to help the caregiver look after your pets. As per a standard Will, a Trustee will need to be appointed to administer these funds to the caregiver to look after the beneficiary, your pet/s.

How to Fund a Pet Trust

This Trust is no different from any other Trust Fund set up after a person’s death. Although you will not be able to cede your assets directly to your pet, you will be able to surrender some or all of your assets to the Trust Fund. The Trustees will then ensure that sufficient money is paid to the caregiver to take care of your pet’s food, grooming, medical care and any other specific needs that it may have during the rest of its life.

What Happens to the Pet Trust Fund if the Pet Dies?

You can nominate a beneficiary in a case like this to either continue receiving money from the Trust Fund or to have the Trust dissolved and a lump sum paid out. The beneficiary doesn’t necessarily have to be an individual either. It can be an animal shelter, such as the SPCA, or another charity of your choosing.

Instructions to the Caregiver After Your Death

A letter of instruction regarding general advice about the upkeep of your pet/s does not have to meet any legal requirement and can work nicely together with your Will. However, bear in mind that it is not a legally binding document and cannot be used to allocate funds to your pet/s. This instruction must be included in your Will.

Do You Need an Attorney To Assist Setting Up A Pet Trust Fund?

Considering all the above, you may be asking yourself if you need an Attorney to assist you in setting up a Trust and a caregiver for your pet/s in your Will. While not absolutely necessary, Attorneys can provide essential legal points of view and insight that are helpful if your Will is not straightforward, as in wanting to include your pet/s or in setting up a Trust Fund.

Who Can Help Me to Set Up a Trust Fund for My Pet?

AED Attorneys will help you to find the best options for your pet/s and give you peace of mind in the process. They can offer you expert advice when writing your Will, including many things that you may not even have thought about. AED takes every person’s situation into account to create a Will tailored to your circumstances.

Leave Behind a Legacy

Even the best intentions and plans can go wrong, especially when it comes to financial gain, you’re your pet/s caregiver. Therefore, you need to be very careful about whom you choose as a caregiver and leave self-explanatory instructions in your Will about how your pet/s will be cared for after your death.

Before your pet gets dropped off at an animal shelter or the SPCA after your untimely death, contact AED Attorneys for further options and assistance with estate planning. This planning will include the appointment of an experienced Executor and Trustees to ensure that your pet/s are well looked after in the event of your passing.

It is always advisable to have a minimum of three Trustees. When nominating a Trustee, you need always to make sure that the third trustee is independent and can administer a Trust. This ensures that there is no deadlock in the decision-making process.

AED Attorneys offer family-centred, open, and friendly legal services. From the moment you walk through their door, you will be treated with respect and patience. Each matter is handled individually and with the same care and dedication. They are passionate, hardworking, and professional.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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What to Do When Someone Dies

Written by Design on January 22, 2021. Posted in Deceased Estates Administration.

There have been thousands of searches on Google over the past 12 months relating to people asking what needs to be done when a loved one passes. People react with shock when someone close to them dies, and if you are responsible for making the funeral and administration arrangements, you may also be thrown into a bit of a panic.

Handling a death and managing funeral arrangements is a challenging situation, especially in the midst of your grief. AED Attorneys has put together some pointers to help you handle the process from the minute of passing until after the funeral.

At the Time of Death

If a person passes away under suspicious circumstances, the police will need to be contacted immediately, and they will organise the body to be removed.
If a person dies in a motor vehicle accident, the body will be removed to the mortuary, and you will be contacted after that.
If a person passes away at home and there is nothing suspicious about the death, you will need to call the paramedics such as ER24 or Netcare 911. They will be able to confirm whether or not the causes are natural. They will also assist in taking the body to the mortuary.
If the person passes away in hospital from natural causes or after an illness, the doctor will issue a death notice, and the body will be taken to the hospital mortuary. If the hospital has no mortuary, you will need to contact a Funeral Home to arrange for the deceased to be collected.
It is a legal requirement that a death notice is signed by a doctor or medical professional certifying the cause of death.

Identification of the Body

Identifying the body must be done by either an immediate family member or a close friend. In some mortuaries, the body can be identified via pictures on a computer rather than an in-person viewing of the body which prevents further emotional trauma. It is always a good idea to bring somebody along with you to the identification for emotional support. Once the identification has been made, a body number will be issued. This number needs to be provided to the funeral home, as well as the funeral policy number and details – if one exists.

Next Steps

Once the body number has been given to the funeral home, they will proceed with the funeral arrangements and will also advise you on what to do. You will now be able to disclose the news to friends, family, and colleagues, as soon as you feel able to.

Unfortunately, under COVID lockdown conditions only 50 people are allowed to attend a funeral, so you may need to discuss alternate options with the Funeral Home, such as broadcasting the funeral online to family and friends, if you choose to do so.

The Funeral Home will request a suitable outfit for the deceased to wear in the coffin or before the cremation.

It will now be time to decide on the following;

Will it be a cremation or a burial?
What type of coffin will be required?
What type of headstone will be required if it is a burial?
Will you require a cremation niche or plaque, if it is a cremation?
Who will deliver the eulogies?
Who will the pallbearers be?

Estate Administration Death Certificate

Either the doctor or police will issue the Notification of Death (DHA 1663). You will need to send this form, together with others and ID copies of the deceased, to the Department of Home Affairs. They will then register the death and issue a DHA5 Death Certificate. Try to obtain several certified copies of this certificate, as you will require them for many of the administrative processes to follow. Most Funeral Homes will be able to assist you with this process.

Processing the Deceased’s Estate

By law, the Master of the High Court must receive notification of the deceased’s Estate. You will need to locate the Will of the deceased to establish who the Executor of the Will is and make contact with them.

If no Executor has been appointed, then contact a law firm such as AED Attorneys, who will report the Estate to the Master, and appoint an Executor.

If you cannot find the Will, or the person died Intestate (with no Will), you will also need to call an Attorney – preferably one which the deceased used. The Estate is then required to be administered under the Intestate Succession Act, and the Master will appoint an Executor.

Once the death certificate has been issued, the administrative processes can start, such as contacting the deceased’s nominated executor or if you need help with the reporting of the estate and the administration a law firm such as AED Attorneys.

This is a list of some of the documents that may be required for an Estate to be reported:

Original last Will and testament.
Original death certificate and DHA-1663-A Notification of Death Form.
Identity documents of deceased and spouse, if applicable.
Name, address of employer and salary number of deceased.
Details of the pension fund.
Name, address, and reference number of medical aid society.
Income tax details (if registered).
Name and telephone number of the accountant.
Name, address, and telephone number of deceased’s usual doctor.
Name, telephone number, and case number from police station should the deceased have died due to unnatural causes (e.g., motor vehicle accident, shooting, suicide etc.).
Partnership agreement and name and address of all partners.
Particulars of company or close corporation or business.
Name and contact number of auditor/accounting officer.
Details of divorced or predeceased spouse.
Antenuptial contracts and/or divorce agreements.
Original title deed in respect of each property and/or bank details where a bond is held.
Rates and taxes account(s) and/or details of the body corporate or managing agents.
Registration certificates in respect of motor vehicles.
Firearms – Copies of licences to be provided.
Certificates/details in respect of timeshare.
Original share certificates or electronic share account details.
Hire and letting contracts.
Cheque books, investment statements, credit cards, ATM cards.
Details of accounts owing by deceased.
Copies of identity documents of beneficiaries and marriage details and certificate.
Copies of birth certificates of minor beneficiaries.

If your loved one planned adequately to ensure that everything was in order and an Executor was appointed, then the Estate’s administration may still be completed relatively quickly. AED Attorneys assists with the drafting of Wills, setting up Estates and the processing of Deceased Estates in an efficient, yet sympathetic manner.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

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Is Your Will Up To Date?

Written by Design on December 14, 2020. Posted in Wills & Trusts.

When last did you update your Will? Do you even have a properly drafted Will? As we head into the festive season and another new year, this may well be an ideal opportunity to reflect on setting your personal affairs in order, including your Will.

The mortality rate is known to increase every year around the Festive Season and New Year, the majority of which can mainly be attributed to road accidents. COVID-19 also continues to have an impact on the death rate, which is rising yet again.

What Happens If You Die Without A Will?

If you don’t have a valid Will when you die, then your assets will be divided up between your spouse, any children you may have left behind, any siblings or your parents – depending on who is left behind and their relationship to you. Should you have none of these, then you run the risk of your property being distributed to your extended family and possibly people whom you would prefer did not receive anything.

It can also delay the appointment of an Executor, causing other unnecessary costs and delays along the way, which may increase the levels of conflict within your immediate family.

Who Can Create A Will?

Anyone who is 16 years or older and of sound mind may create a Will. It is, however, a legal requirement that the signing of a Will is witnessed by two people older than 14 and that the Will is in writing, with every page initialled and signed on the last page, by both the benefactor of the Will and the witnesses present. The Will allows you to appoint your choice of an Executor, as well as to divide up your assets.

What Are The Responsibilities Of An Executor Of An Estate?

During your life, you will assemble assets in the form of property, motor vehicles, etc. All these assets contribute to what is known as your “Estate”. On your death, these assets need to be overseen and distributed to the relevant beneficiaries. An Executor is a person who will administer this process and ensure that the details of your Will are carried out according to your instructions. It should take, on average, 7 to 18 months to finalise your estate – but there can be exceptions.

The Executor will meet with your family, shortly after your death, to gather all the documentation and information required to oversee the dispersal of your assets. They will also be required:

To report the deceased estate to the local Master of the High Court.
To provide notice of your passing to any debtors and/or creditors.
To close your existing accounts.
To determine the total value of your estate after all the debts have been paid.
To distribute the remaining assets to your beneficiaries.

It is important to note that Executors charge a fee to administer the Deceased Estate and these fees are currently 3.5% of the gross value of the Deceased Estate. Depending on who the Executor is, may depend on how negotiable this percentage is.

What If There Is No Cash, Or Your Estate Is In Debt Without Any Assets?

If there is no cash in your estate, but perhaps a few assets such as a house and a car, then the Executor may request the beneficiaries of your Will to pay any shortfall, or request their permission to sell the assets to obtain cash in your estate.

If your estate is in debt when you die and you have no assets, your family will need to report this to the Master. The Master will then issue a letter confirming that your estate was reported and that there are no assets. This letter will be sent to any companies to which you owed money at the time of your death.

Where Should You Keep Your Will?

You need to ensure that the original signed Will is kept safe by someone you trust or by your bank or Attorney. You may have more than one signed copy of the original Will to ensure that it is never lost. However, an original signed copy must be obtainable after your death. Photocopied signatures will invalidate your Will.

Why You Should Use An Attorney To Draft Your Will.

Although you are not legally required to use an attorney to draft your Will, you should obtain their professional services. A Will is a very specialised document, and you need to ensure that it complies with all the relevant rules and regulations, to be accepted as a valid Will.

When Should You Update Your Current Will?

It may be time to review your current Will in the event of any births, deaths, new businesses or any other legal events that took place in your family, since you last drafted your Will, as these events may have an impact on your assets or beneficiaries. It may also be worthwhile having an Attorney review your latest Will to check that it is still valid.

Furthermore, if your estate is a very complex one, it is best to nominate an Attorney firm, such as AED Attorneys. They will also provide you with the necessary legal guidance and other helpful tips to ensure that all bases have been covered.

AED Attorneys is in good standing with all Master’s offices and has a dedicated Consultant who attends to this work.

Furthermore, AED Attorneys has built a professional network of experienced service-providers to assist with the many services that a Deceased Estate may require, such as auctioneers, appraisers, bookkeepers, etc. This has provided AED’s clients with peace of mind during what is a very challenging time in their lives.

The AED team is known for their compassion, understanding and desire to go the extra mile for all their clients. In her own words, Annie Davids, Founder of AED Attorneys, says, “I aim to provide a service that connects with clients, most of whom need sympathy and understanding or a wise voice to explain the finer points of family-related legal processes in South Africa.”

For a trustworthy firm that values long-standing client relationships, contact AED Attorneys to assist you in drafting your Will or in updating your existing Will.

AED Attorneys understands that every situation is unique, and although they strive to ensure that the information contained herein is accurate at the time of publishing, it cannot be guaranteed to be without errors or omissions. As a result, AED Attorneys, its employees, independent contractors, associates or third parties will under no circumstances accept liability or be held liable, for any innocent or negligent actions or omissions in this article, which may result in any harm or liability flowing from the use of or the inability to use the information provided.

More About AED Attorneys

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