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Author: kevin Cartmell

Understanding Your Rights When Transaction Transfer Costs Are Paid but the Deal Falls Through

In the world of property transactions in South Africa, unexpected twists can occur. You’ve diligently paid all the necessary transfer costs to the transferring attorney, eagerly anticipating the completion of your property deal, only to face the disheartening news that the transaction will not proceed as planned. What are your rights in such a situation? In this article, we’ll explore your rights and options when your property transaction takes an unexpected turn.

1. Seek Legal Advice

The first and most crucial step when you find yourself in this predicament is to seek legal advice from a reputable attorney, like AED Attorneys. An experienced attorney can assess the specifics of your case, review the documents and agreements involved, and provide tailored guidance on your rights and potential courses of action.

2. Understand the Reason for the Cancellation

To determine your rights accurately, it’s essential to understand the reason behind the cancellation of the property transaction. In South Africa, property deals can collapse for various reasons, such as:

  • Financing issues
  • Title deed problems
  • Boundary disputes
  • Unforeseen legal complications
  • Seller’s breach of contract
  • The Buyer or Seller’s tax matters with SARS not being up to date

Knowing the cause can help your attorney advise you on the most appropriate steps to take.

3. Review the Sale Agreement

Your rights regarding the paid transfer costs may be outlined in the sale agreement. It’s crucial to carefully review this document, as it often contains clauses that address what happens to the costs in case of a deal breakdown. Some agreements stipulate that the costs are refundable to the buyer, while others may specify that they are non-refundable.

4. Negotiation with the Seller

In many cases, a negotiation between the buyer and seller can help determine the fate of the paid transfer costs. If both parties are willing, they may reach an agreement on how to distribute these costs, whether partially or in full, depending on the circumstances and terms of the sale agreement.

5. Pursue Legal Remedies

If negotiations fail or the seller is unwilling to cooperate, you may need to consider pursuing legal remedies. Your attorney can guide you through the process of initiating legal action to recover the transfer costs or seek compensation for your financial losses due to the failed transaction. This may involve taking the matter to court if necessary.

6. Assess the Transferring Attorney’s Role

The transferring attorney plays a crucial role in the property transaction. If it’s determined that the transferring attorney’s actions or negligence contributed to the deal’s collapse, you may have grounds for a professional misconduct complaint or a claim against their professional indemnity insurance.

7. Consider Mediation or Arbitration

In some cases, mediation or arbitration can be an alternative to lengthy court proceedings. These dispute resolution methods can help both parties reach a mutually acceptable solution regarding the transfer costs and any other related issues.

8. Document Everything

Throughout this process, it’s vital to keep thorough records of all communication, agreements, and documents related to the property transaction. These records can serve as evidence if you need to pursue legal action or negotiate with the seller.

In conclusion, when you’ve paid all the transfer costs but your property transaction falls through, it’s crucial to approach the situation methodically and seek legal advice promptly. Your rights and options will depend on various factors, including the terms of the sale agreement and the specific circumstances surrounding the deal’s cancellation. With the guidance of a qualified attorney, you can navigate this challenging situation and work towards a resolution that aligns with your best interests. Remember that AED Attorneys is here to assist you with expert legal advice and support during such challenging times in your property journey.

Navigating Financial Uncertainty After Your Ex-Spouse’s Passing: What Are the Next Steps?

Losing a former spouse is a challenging and emotional experience, and when you relied on their monthly maintenance payments for financial support, it can create added stress and uncertainty. In South Africa, understanding your rights and taking the appropriate steps is essential to ensure your financial well-being. In this article, we’ll explore the next steps you should consider when your ex-spouse passes away, and you were financially dependent on his/her maintenance payments.

1. Verify the Situation

The first step is to confirm the passing of your ex-spouse. This may involve obtaining a copy of the death certificate, which can be obtained from the Department of Home Affairs or the relevant local authority. Make sure to keep this document in a safe place, as it will be needed for various administrative purposes.

2. Review Your Divorce Decree

The terms of your divorce decree or court order will specify the details of the maintenance agreement, including the amount and duration of the maintenance payments. It’s crucial to review this document carefully to understand your rights and obligations as outlined in the divorce settlement.

3. Notify the Executor

The executor is a person appointed to manage your ex-spouse’s estate and distribute assets according to his will or the law. Notify the executor of your ex-spouse’s passing and provide them with a copy of the divorce decree or court order specifying the maintenance payments. This will ensure that your claim for ongoing maintenance is recorded in the estate.

4. Consult with an Attorney

Given the complexities of estate administration and inheritance laws in South Africa, it’s advisable to consult with an attorney experienced in family law and estates. They can provide guidance on your rights and options, including pursuing a claim against your ex-spouse’s estate to secure ongoing financial support if applicable.

5. Estate Claims for Maintenance

Depending on the circumstances, you may be eligible to claim maintenance from your ex-spouse’s estate if he/she did not leave sufficient provisions for you in his/her will or died intestate (without a will). South African law allows for claims by former spouses who were financially dependent on the deceased. Your attorney can assist you in preparing and submitting a claim to the executor, however an Actuary needs to work out the claim amount accordingly.

6. Seek Temporary Financial Support

While you navigate the legal process, you may find yourself in need of immediate financial support. Consider seeking assistance from government agencies or charitable organizations that provide support to individuals facing financial hardship.

7. Assess Your Finances

Take a close look at your financial situation. Create a budget to manage your expenses and determine if there are any critical financial obligations that need to be met while you await the resolution of your maintenance claim. This will help you prioritize your financial needs.

8. Consider Alternative Sources of Income

Exploring alternative sources of income, such as part-time work, freelance opportunities, or investments, may be necessary to bridge the gap left by the loss of maintenance payments. An attorney or financial advisor can provide insights into your financial planning options.

9. Emotional Support

Coping with the loss of a former spouse and the financial uncertainties that follow can be emotionally taxing. Seek emotional support from friends, family, or a counselor to help you navigate this challenging period.

10. Stay Informed

Stay informed about the progress of the estate administration and your maintenance claim. Regular communication with your attorney and the estate’s executor will help ensure that your interests are protected.

In conclusion, losing financial support from maintenance payments after your ex-spouse’s passing can be a daunting experience. However, it’s important to remember that South African law provides options and protections for those who were financially dependent on the deceased. Seeking legal advice and taking proactive steps will help you navigate this challenging time and secure the financial support you need to move forward. An attorney specializing in family law and estates can be an invaluable resource in this process, guiding you through the complexities of estate claims and helping you secure the financial stability you deserve.

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.

Unraveling the Meaning of “Unnatural Causes” on a Death Certificate: Implications for Reporting the Estate

The passing of a loved one is a deeply emotional and often complicated experience. When a death certificate indicates “unnatural causes,” it adds another layer of complexity to an already challenging situation. In this article, we will explore what it means when a death certificate mentions “unnatural causes,” specifically in the context of reporting the deceased’s estate in South Africa.

Understanding “Unnatural Causes” on a Death Certificate

When a death occurs, a medical practitioner, often a doctor or forensic pathologist, is responsible for certifying the cause of death. The cause of death is categorized into two primary types: natural and unnatural.

  • Natural Causes: This category includes deaths resulting from medical conditions such as illnesses, diseases, or age-related factors. Common examples are heart disease, cancer, or complications from diabetes.
  • Unnatural Causes: Deaths classified as unnatural are those that occur due to external factors, events, or circumstances. This category encompasses a wide range of situations, including accidents, homicides, suicides, drug overdoses, and other non-medical causes.

When a death certificate lists “unnatural causes” as the cause of death, it signifies that the deceased’s passing resulted from circumstances beyond typical natural causes like illness or old age. This classification is essential for various reasons, including legal and insurance purposes.

Implications for Reporting the Estate

Reporting the estate of a deceased individual involves a series of legal and administrative steps to settle their affairs. When the cause of death is “unnatural,” several implications come into play:

  1. Investigation and Inquest: In cases of unnatural deaths, there may be investigations and, in some instances, inquests to determine the exact circumstances leading to the individual’s passing. These investigations are conducted by relevant authorities, such as the police or a coroner, to establish the cause and circumstances of the death.
  2. Insurance Claims: If the deceased had life insurance policies, the insurer may conduct a thorough investigation to assess the circumstances surrounding the unnatural death. Insurance claims may be subject to additional scrutiny, and the payout may depend on the outcome of investigations.
  3. Estate Administration: The executor or administrator of the deceased’s estate must navigate potential legal complexities associated with unnatural deaths. This can include addressing legal liabilities, such as outstanding debts or legal actions resulting from the circumstances of the death.
  4. Distribution of Assets: The distribution of the deceased’s assets may be impacted by the classification of an unnatural death. For instance, if the death was a result of a criminal act, the assets may be frozen pending the resolution of legal proceedings.
  5. Complications with Beneficiaries: Beneficiaries of the deceased’s estate may face delays in receiving their inheritances due to ongoing investigations or legal disputes related to the unnatural death.
  6. Legal Counsel: In cases of unnatural deaths, it is highly advisable to seek legal counsel. An experienced attorney can guide the executor or administrator through the estate administration process, help address any legal issues, and ensure that the deceased’s wishes are carried out as much as possible.
  7. Emotional Considerations: Dealing with an unnatural death can be emotionally taxing. Executors and administrators should be prepared to provide support and guidance to family members during this challenging time.

Conclusion

When a death certificate cites “unnatural causes,” it signifies that the individual’s passing was due to circumstances beyond natural causes, such as illnesses or age-related factors. This classification can have far-reaching implications for estate reporting, including legal complexities, investigations, and potential delays in asset distribution.

Navigating the estate reporting process in the aftermath of an unnatural death requires careful consideration of legal and administrative aspects. Seeking the guidance of an experienced attorney is essential to ensure that the deceased’s wishes are respected, and the estate is handled effectively and in compliance with South African laws and regulations. While it may be a challenging journey, with the right support, the estate can be settled, providing some closure for the family and loved ones of the deceased.

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.

Understanding Life Rights in Retirement Villages: What You Need to Know When Scaling Down

As individuals approach retirement age, many consider downsizing and moving to retirement villages for a more relaxed and community-oriented lifestyle. One common arrangement in such communities is life rights. But what exactly does life rights on a property mean, and how does it affect your living situation in a retirement village in South Africa? In this article, we’ll delve into the concept of life rights and explore what it entails when scaling down to live in a retirement village.

What Are Life Rights in a Retirement Village?

Life rights are a unique form of property ownership or, more accurately, the right to occupy a property within a retirement village for the duration of your life. It is essential to understand that life rights do not constitute actual ownership of the property; instead, they grant you the legal right to live in the unit for the rest of your life or until you decide to leave.

Key Features of Life Rights:

  1. Lifetime Occupation: Life rights entitle you to occupy a particular unit within the retirement village for as long as you live, provided you adhere to the terms and conditions of the agreement.
  2. No Transfer of Ownership: With life rights, you do not acquire ownership of the property. Instead, you enter into a contractual agreement with the retirement village operator that specifies your right to live in the unit.
  3. Right to Resell or Bequeath: Depending on the terms of the agreement, you may have the right to resell your life rights to someone else or bequeath them to a family member, friend, or another individual who meets the village’s eligibility criteria.
  4. Financial Arrangements: Life rights agreements typically involve a financial transaction, such as a lump-sum payment, monthly levies, or a combination of both. These payments cover various services and amenities provided by the retirement village, such as maintenance, security, and communal facilities.
  5. Exit Strategy: The agreement should outline the process for exiting the retirement village, whether due to relocation, health reasons, or other circumstances. This can include provisions for the return of your investment or life rights fee.

What Are the Advantages of Life Rights in Retirement Villages?

  1. Financial Predictability: Life rights often involve fixed monthly levies, providing financial predictability and simplifying budgeting for retirees.
  2. Access to Amenities: Retirement villages typically offer a range of amenities and services, such as healthcare facilities, recreational areas, and social activities, enhancing residents’ quality of life.
  3. Community Living: Retirement villages foster a sense of community and social interaction among residents, promoting a fulfilling and active lifestyle.
  4. Exit Options: The ability to resell or bequeath your life rights can be an advantage, allowing you to pass on your chosen lifestyle to a loved one or recover some of your investment.

What Should You Consider When Exploring Life Rights?

  1. Agreement Terms: Carefully review the terms and conditions of the life rights agreement, including financial arrangements, services, and exit provisions.
  2. Legal Advice: Seek legal counsel from an attorney experienced in retirement village contracts to ensure you fully understand the agreement and its implications.
  3. Eligibility Criteria: Retirement villages may have specific eligibility criteria based on age, health, or other factors. Ensure you meet these requirements before proceeding.
  4. Financial Planning: Evaluate your financial situation and consider how life rights fees and ongoing levies fit into your retirement financial planning.
  5. Exit Strategy: Understand the exit strategy and potential costs associated with leaving the retirement village. Some agreements may require you to forfeit a portion of your initial payment.

Conclusion

Life rights on a property in a retirement village offer retirees a unique living arrangement with numerous advantages, including financial predictability and access to amenities and a vibrant community. However, it’s essential to enter into such agreements with a clear understanding of their terms and implications. Seek legal advice, review the agreement carefully, and consider your financial and lifestyle preferences before making the decision to scale down and enjoy your retirement in a retirement village. With the right information and planning, life rights can provide a fulfilling and comfortable retirement experience.

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.

What happens to my company if I die?

Death is inevitable, but it can also be unpredictable. If you are a business owner, you may wonder what will happen to your company if you die unexpectedly. Who will take over the management? How will your assets be distributed? What will happen to your employees and clients? Who will inherit your shares and assets? How will your death affect your employees, customers, partners, suppliers, and other stakeholders? These are some of the questions that you need to consider and plan for in advance, to ensure that your legacy lives on and your family is protected.

Business succession planning is the process of preparing for the transfer of ownership and management of your company in the event of your death, retirement, disability, or exit. It involves identifying and developing potential successors, setting clear goals and expectations, creating a legal and financial framework, and communicating the plan to all relevant parties. Business succession planning is not only important for you as a business owner, but also for your company and its future.

Without a proper succession plan in place, your company may face various risks and challenges, such as:

  • Loss of leadership and direction: If you die without appointing a successor or a team to take over your role, your company may suffer from a lack of leadership and direction. There may be confusion, uncertainty, or conflict among your employees, managers, or board members about who is in charge and what to do next. This may affect the performance, productivity, morale, and culture of your company.
  • Loss of value and reputation: If you die without transferring your ownership or shares to someone else, your company may lose its value and reputation. Your shares may be subject to estate duty or inheritance tax, which may reduce the net worth of your company. Your heirs or beneficiaries may not have the same interest or expertise in running your company as you did. They may also have different goals or visions for your company than you did. This may affect the quality, service, innovation, and customer satisfaction of your company.
  • Loss of continuity and stability: If you die without ensuring that your company can operate smoothly and independently without you, your company may lose its continuity and stability. Your company may face operational disruptions or difficulties due to the absence of your knowledge, skills, experience, or relationships. Your company may also face legal or financial challenges due to the lack of proper documentation or agreements. This may affect the cash flow, profitability, growth, and sustainability of your company.

To avoid these risks and challenges, you need to get good legal advice from experts who understand the complexities and implications of business succession planning. AED Attorneys specialises in estate planning and administration, as well as property matters. We can help you with:

  • Drafting or reviewing your will or trust to ensure that it reflects your wishes and intentions for your company
  • Setting up a buy-sell agreement or a shareholders agreement to regulate the transfer of ownership or shares in your company
  • Valuing your company and its assets and liabilities to determine the fair market value and tax implications
  • Identifying and developing potential successors for your role and responsibilities in your company
  • Creating a transition plan and timeline for handing over your role and responsibilities to your successors
  • Communicating your succession plan to all relevant parties such as your family, employees, managers, board members, customers, partners, suppliers, and other stakeholders

Examples of what could go wrong if you do not get good legal advice

You may encounter some problems or complications that could jeopardise the future of your company. For example:

  • You may draft a will or trust that is invalid, unclear, incomplete, or outdated. This could result in disputes among your heirs or beneficiaries over the interpretation or execution of your will or trust. It could also expose your estate to claims from creditors or other parties who may challenge the validity or legality of your will or trust.
  • You may fail to set up a buy-sell agreement or a shareholders agreement that protects your interests and rights as an owner or shareholder of your company. This could result in conflicts among co-owners or shareholders over the valuation or sale of shares in the event of death. It could also affect the continuity and stability of your company if there is no clear or agreed-upon process for transferring ownership or shares in the event of death.
  • It could reduce the value and attractiveness of your company if there is no guarantee or assurance for potential buyers or investors that they can acquire your shares or ownership without any hassle or dispute
  • It could create tax or legal liabilities for you or your estate if there are any discrepancies or inconsistencies between your will or trust and your buy-sell agreement or shareholders agreement.

To avoid these risks, one of the most important steps is to draft a will and set up a trust. A will is a legal document that specifies how you want your estate to be distributed after your death. A trust is a legal arrangement that allows you to transfer your assets to a trustee, who will manage them for the benefit of your beneficiaries. By creating a will and a trust, you can avoid the lengthy and costly process of probate, which is the court-supervised administration of your estate. You can also reduce the tax burden on your heirs and ensure that your wishes are respected.

Another crucial step is to appoint a successor for your business. This can be a family member, a partner, a key employee, or an outside party. You should choose someone who has the skills, experience, and vision to run your business successfully. You should also communicate your succession plan to your staff, clients, and stakeholders, so that they know what to expect and how to support the transition. You should also update your contracts, agreements, and insurance policies to reflect your succession plan.

It is important to consult with a professional legal service that specializes in estate planning and business succession. AED Attorneys offers a family-centered, open and friendly legal service to people who need understanding and sympathy in dealing with the administration of estates, as well as displaying competence and efficiency when handling property matters. We can help you draft your will and trust, administer your estate, transfer your property, and advise you on the best way to structure your business for tax purposes, and ensure that it complies with the relevant laws and regulations.

By planning ahead, you can ensure that your company survives and thrives after your death. You can also protect your family’s financial security and peace of mind. Don’t leave it to chance or fate. Contact AED Attorneys today and let them help you create a lasting legacy for your business.

What can I do if I am a new owner and there are problems with the electrical compliance certificate?

If you have recently bought a property in South Africa, you may have received an electrical compliance certificate (ECoC) from the seller. An ECoC is a legal document that verifies that an electrical installation is compliant with the legal requirements as stipulated in the Electrical Installations Occupational Health and Safety Act of South Africa. The ECoC is only valid for two years after issue or until such time as alterations or additions are made.

An ECoC is compulsory in South Africa for several reasons, such as:

  • To ensure the safety and protection of people, animals, and property from electrical hazards such as shocks, fires, or explosions.
  • To prevent or minimise the risk of damage or loss due to faulty or illegal electrical installations.
  • To comply with the regulations and standards that govern the design, installation, maintenance, and inspection of electrical installations.
  • To facilitate the transfer of ownership or responsibility of electrical installations between parties such as sellers, buyers, landlords, tenants, or contractors.
  • To enable the enforcement and monitoring of electrical installations by authorities such as the Department of Labour, SABS, Eskom, or municipalities.

According to the Electrical Installation Regulations of 2009, an ECoC is required for:

  • Any new electrical installation
  • Any addition or alteration to an existing electrical installation
  • Any change of ownership of a property with an existing electrical installation
  • Any inspection required by an inspector or supplier
  • An ECoC must be issued by a registered person who is qualified and authorised to perform electrical work and inspections. The registered person must also be in possession of a valid wireman’s licence issued by the Department of Labour.

Don’t risk your safety or liability by neglecting or ignoring your ECoC. AED Attorneys specialises in estate planning and administration, as well as property matters. We can help you to find a registered person who can issue an ECoC for your electrical installation.  

However, what if you discover that there are problems with the electrical installation or the ECoC after you have taken ownership of the property? For example, what if you find out that the ECoC is outdated, incomplete, fraudulent, or does not cover all the electrical work on the property? What if you encounter electrical faults, hazards, or defects that pose a risk to your safety or property? What are your rights and responsibilities as a new owner in such situations? According to the law, the seller is responsible for providing a valid ECoC to the buyer before transferring ownership of the property. The seller is also liable for any damages or losses caused by a defective or non-compliant electrical installation. Therefore, if you are a new owner and you encounter problems with the ECoC or the electrical installation, you have several options to pursue:

  • You can contact the seller and request them to rectify the problems or provide a new ECoC at their own cost.
  • You can contact the electrician who issued the ECoC and request them to rectify the problems or provide a new ECoC at their own cost or if he fails you can report them to the Electrical Conformance Board (ECB) or their professional body for misconduct or negligence.
  • You can hire another qualified electrician to inspect and repair the electrical installation and issue a new ECoC at your own cost.  This can only be done after you have requested the electrician that attended to the inspection initially to rectify any defects or problems.

What will happen with my Cryptocurrency when I die?

There are more than 800 cryptocurrencies that you can use to make purchases online, send money to friends and family, or get paid for your work. But what happens to your wallet when you pass away?

As cryptocurrency grows in popularity, you need to make sure you bring these into your estate planning, make a trusted person aware of the fact that you own such currency, and how to find they can find it. After your death the fate of your cryptocurrencies will depend on several factors, such as whether you have made provisions for their transfer or disposal in your will or other legal documents. In South Africa, cryptocurrencies are not yet explicitly regulated, and there is no specific legislation governing the inheritance of cryptocurrencies. However, cryptocurrencies can be considered assets or property, and their distribution can be governed by South Africa’s laws of succession.

The executor of your estate will also be responsible for managing and distributing cryptocurrencies according to your will. If you have not made any specific provisions, your cryptocurrencies may be treated as part of your estate and distributed according to the laws of succession. It is best to make provisions for the transfer or disposal of your cryptocurrencies in your will or other legal documents to ensure that they are handled in accordance with your wishes. You need to ensure that your bitcoin is identifiable and accessible for your executor and beneficiaries. The ‘keys’ are crucial for transferring ownership or spending your bitcoin. It is therefore important that the keys need to be protected and practically dealt with by your executor. If a key is lost or no longer accessible, then, in essence, you will have lost your bitcoin. You may want to consider storing your private keys and other relevant information in a secure location and informing your beneficiaries of their existence to facilitate the transfer of your cryptocurrencies.

If you have inherited cryptocurrency from someone, there are a few steps you should take to ensure that you have control over the assets and that they are secure:

  • Familiarise yourself with cryptocurrency: If you’re not familiar with cryptocurrency, it’s essential to educate yourself on the technology and how it works. You can start by researching the specific type of cryptocurrency you inherited, how it’s stored, and how it’s traded. Cryptocurrency is a digital currency that creates a new way to pay and receive money, using encryption techniques to regulate and verify the transfer of funds. Encryption aims to provide security and safety, by implementing cryptographic methods that involve the solving of complex mathematical problems and stored in digital wallets. You save virtual coins in your digital wallet, on your phone or computer. This also makes it easy to transfer money anywhere in the world because there are “no borders between countries” where cryptocurrencies are concerned. The first decentralised cryptocurrency was Bitcoin, and was soon followed by many other cryptocurrencies, such as Litecoin, Ethereum, Monero, and Zcash.
  • Secure your cryptocurrency: Once you understand how the cryptocurrency works, you should ensure that it’s secure. You can do this by setting up a secure wallet, which is a digital storage system for your cryptocurrency. Make sure to keep your private keys safe, and never share them with anyone.
  • Determine the value of your cryptocurrency: To understand the value of your cryptocurrency, you can check online exchanges or consult with a financial advisor. You should also be aware of any tax implications associated with your inherited cryptocurrency.
  • Decide what to do with your cryptocurrency: You can hold onto the cryptocurrency as an investment, trade it for another cryptocurrency or traditional currency, or use it to make purchases.
  • If your financial advisor was not aware of this when assisting you with your estate planning and the drafting of your will, it could increase the cost of executors’ fees and estate duty. This could also impact negatively on any liquidity calculations performed during the estate planning process. Because of the anonymous nature of cryptocurrencies, it could be difficult for your executor to trace your holdings and properly account for them unless you have ensured that your executor and/or family members are aware of your holdings and how to access them. Backing up your wallet on an external hard drive and transcribing all access details for the wallet is a practical option to ensure that your executor and loved ones have access of your cryptocurrency.

Get in touch with AED Attorneys to explain the legalities with you, and to make sure that you update your will to include your cryptocurrency. Cryptocurrency will be assets in your estate and can be dealt with to an extent in your 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.

I am named as the legal guardian of my brother’s children. What are my obligations?

When your brother asked you if he could name you as the guardian of his newborn, you felt proud and excited beyond words.  But have you considered what it actually means in terms of our law to be a guardian?

If you are named as the legal guardian of your brother’s children in his will, it means that you would have legal responsibility for the children’s care and upbringing, should both parents pass away. This would include making decisions about the child’s education, healthcare, and general welfare, as well as providing for the child’s basic needs, such as food, clothing, and shelter. In addition to these responsibilities, being named as the legal guardian would create financial obligations, which would depend on a number of factors, such as the age, needs and expenses of the children, and the financial resources that you have available.

Usually children are entitled to receive financial support from their parents’ estate, such as from life insurance proceeds or other assets. However, if these resources are not sufficient to cover the children’s needs, you as the guardian may be required to provide additional financial support, depending on the applicable laws and court decisions.

In South Africa, guardianship is governed by the Children’s Act of 2005 and the Mental Health Care Act of 2002. These laws impose certain parental rights and responsibilities upon parents and guardians. A guardian would be appointed by the court to make decisions on behalf of a minor or incapacitated adult, who is known as the ward. Guardianship refers specifically to the legal relationship between a guardian and a minor, or an incapacitated adult. Guardianship of minors refers to the legal relationship between a guardian and someone younger than 18.

On a day-to-day basis, the care of a child means the safekeeping and protection of that child, provision of daily needs (food, shelter), emotional and financial support. As their guardian you will be responsible for the maintenance, care and upbringing of the children, and will have the authority to make decisions on their behalf. Your role will be to assist the child in all ways, including medical treatment and legal, administrative, and contractual matters.  It can also include refusing consent when it comes to a child’s marriage, adoption, removal or departure from South Africa and even an application for a passport or consenting to the sale of a child’s immovable property.

Legally, the High Court is the upper guardian of all children in South Africa, so if someone believes that a guardian is not fulfilling their required duties, under certain circumstances the High Court can intervene and terminate guardianship. The best interests of the child are always of the highest importance so the child’s well-being and ability to thrive as it applies in your particular situation, would be taken into consideration. Since families and situations are different, decisions are made on a case-by-case basis, and factors such as the relationship between you and the child would also be considered.

Remember that being named as a legal guardian in a will does not necessarily mean that you are obligated to take on this responsibility. If you do feel that you will not be able to care for the child, you may decline the appointment as guardian, and the court would then look for an alternative guardian for the child. It is advisable to obtain the services of a legal professional to guide you through the process especially if you have children of your own, or are not sure what the legal implications would be. AED Attorneys can assist you to ensure that every child’s interests are taken into consideration and that your documents are updated to make provision for a potential new addition to your family.

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.

Child Maintenance Will 

When you become a parent, you automatically have the obligation to look after the child, as set out in article 27(2) of the Convention on the Rights of the Child (1989). This is known as “a common law duty” and is set out in more detail in Section 15(3)(a) of the Maintenance Act (99 of 1998). The primary duty of parents would be to provide financially for their children from birth until the child becomes self-supporting, regardless of whether the child was born lawfully or out of wedlock. If one of the parents dies, the surviving parent is primarily responsible for raising the child. In principle, the obligation of a parent to support a child only ends in the instance of the child’s death (and not by the parent’s death), since a child has a right to claim maintenance from the deceased parent’s estate. Such a claim has priority above any other bequests.

If the deceased parent’s estate is not enough to cover the child’s support, or if there is no estate and the remaining parent is unable to support the child, the duty of support could be extended to the child’s grandparents. South African law places an obligation on siblings to support each other. This means that if the remaining parent or the grandparents are unable to support the child and there is not enough in the estate either, the siblings will have to support the dependent child. A sibling must be destitute when claiming support from siblings, and the extent of the duty will depend on the respective means of the siblings.

A guardian could be appointed by the court to make decisions on behalf of the child. In South Africa, guardianship refers to the legal relationship between a guardian and a minor (or incapacitated adult). Guardianship of minors refers to the legal relationship between a guardian and someone under the age of 18. The guardian would be responsible for the maintenance, care and upbringing of the child and has the authority to make decisions on their behalf.

South African law recognises the right of every child to an adequate standard of living. This means that appropriate measures (such as grants) must be made available to assist parents and other people responsible for the maintenance of the child according to this said right to an adequate standard of living, which also applies where either one or both parents have passed away and there is no other responsible and financially able person to support the child.

There is no single or specific law that authorises courts to grant an order that would oblige the state to provide support to children in need of maintenance. The implication is that government institutions have discretion over the decision to provide children’s grants. However, art 27(4) of the Convention on the Rights of the Child does oblige state parties to “take all appropriate measures to secure the recovery of maintenance for the child from the parents or others responsible for maintenance”. This means that Government could use both national and international measures to secure the recovery of maintenance for needy children. For this purpose, the maintenance laws and maintenance courts can assist in the implementation and enforcement of maintenance orders. Legislation include Case Law and:

  • The Constitution
  • Convention on the Rights of the Child
  • The Children’s Act 38 of 2005
  • The Maintenance Act 99 of 1998

Section 15(1) of the Maintenance Act states that child maintenance is the common law obligation of both parents (section 15(3)(a)). Maintenance will be distributed between the parents in accordance with their respective financial means.  The following four requirements should be met:

  1. The court should have the authority to hear the matter;
  2. There must be a legal duty for child maintenance;
  3. The child to be maintained must be in need of support; and
  4. The person responsible for the maintenance must have the means to do so.

If one of the above requirements is not met, the court will not grant an order of maintenance.

The Constitution provides that every child has the right to parental or family care, or to alternative care if the child had to be removed from the family environment. It also states that a child has the right to basic nutrition, shelter, basic health care services and social services, with the best interests of the child are of paramount importance in every matter concerning the child. The criteria for determining the best interests of the child will apply in each instance, including a child’s right to maintenance.

The Convention on the Rights of the Child was ratified by South Africa in 1995. Article 3 provides that the best interests of the child shall be a primary consideration in all actions where children are concerned, whether undertaken by public/private social welfare institutions, courts of law, legislative bodies or administrative authorities. This means that special maintenance grants from the state children who are in need of support may be eligible for.

In instances where a child has a maintenance claim against the estate, the Maintenance Act does not provide for such a right/claim and cannot be relied on. Under such circumstances, children whose parents have passed away will not have protection under the Maintenance Act. These children will, however, be automatically protected according to general South African law, in which case a maintenance claim can be lodged against the executor of the deceased parent’s estate.

The Children’s Act covers almost every aspect relating to children. It sets the principle of “best interests of the child” and describes the parental responsibilities and rights a person may have in respect of the child, including the right to care for the child and to contribute to the maintenance of the child.  The Children’s Act empowers the children’s court to issue a contribution order against the parents of the child, which functions in effect the same as a maintenance order. This Act read with the Maintenance Act stipulates that both parents have an obligation to support their children in accordance with their respective financial means. The Children’s Act further brings South Africa’s child care and protection law in line with the Constitution.

In the instance where a child is claiming maintenance from a deceased parent’s estate, or should a dispute arise between the surviving parent and the executor representing the deceased parent’s estate about the amount of maintenance to be paid, the matter will have to be resolved by an independent professional before it goes to trial. Ultimately, after considering all relevant circumstances, the court will base its decision on what it believes is in the child’s best interests. We recommend that you obtain the services of a legal professional to guide you through the process. AED Attorneys can assist you in getting the paperwork right, handling the estate and ensure that the child’s interests are taken into consideration.

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.

What is a Probate Process? 

The English noun “probate” derives directly from the Latin verb probare, which means to try, test, prove, or examine.  In legal terms, probate is the process completed when someone leaves assets to distribute after their death, such as possessions, real estate, bank accounts and financial investments. Probate is the general administration of a deceased person’s will or the estate of a deceased person without a will. England and South Africa have very similar probate processes, and South Africa is recognised under the UK’s Colonial Probate Act. In South Africa the terminology is slightly different in regard to certain probate documents. For example, the equivalent of the British “Grant of Probate” is called a “Letter of Executorship”.

A Letter of Executorship is issued by the Master of the High Court, when an estate has a value above R250 000 and serves to confirm the appointment of the executor. Under normal circumstances, the Master can take up to 6 weeks to issue an appointment letter provided that all the correct and relevant documents have been submitted.

A Letter of Authority confirms the appointment of the Master’s Representative and can be issued for an estate with a value less than R250 000, according to Section 18(3) of the Administration of Estates Act. A Letter of Authority empowers a person to administer the deceased estate without following the full procedure set out in the Act, leading to an informal and more cost-effective estate administration process will be followed.

An executor is commonly named in the will or an administrator, if there is no will, to complete the probate process. This involves collecting the deceased’s assets to pay any remaining liabilities on their estate and distributing the assets to beneficiaries.  The probate process, which formally allows the distribution of a decedent’s assets, can be time consuming, but when you have a valid will in place, the probate process can usually move more quickly than without a will. The process can be time consuming and may leave your heirs with higher court costs and legal fees than would be the case if you had a will.

You have a few options, like establishing a trust, having a Living Will, granting Power of Attorney, and setting up a Health Care Proxy to consider.

  • A Trust is an entity with legal authority to manage your assets and distribute them according to your wishes. You will appoint a trustee to oversee the trust.
  • A Living Will acts as a type of healthcare directive to instruct your doctors and loved ones on how to handle medical decisions, should you ever become incapacitated.
  •  A Power Of Attorney is a document authorises someone to act on your behalf and is used in cases where you are unavailable or unable to make decisions.  A ‘durable’ power of attorney means it survives your incapacity.
  • A Health Care Proxy is also known as as “a health care power of attorney”, and allows you (as a patient) to appoint an agent to make health care decisions on your behalf, should that become necessary.

Distribution of your possessions and assets could be relatively uncomplicated if your spouse is the sole beneficiary, but if you wish to give some money to a few charity organisations and then have the balance divided among relatives and friends, you will need to involve a competent legal professional to ensure that your wishes are carried out without ambiguity.

Apart from potentially speeding up the probate process, a will has the following benefits:

  • Assign guardianship. A will allows you to decide who takes responsibility for your children and pets.
  • Tax implications. The value of what you give away can help minimize estate taxes.
  • Peace of mind. With a will in place, family conflict can be minimised.

Remember that a will should be revisited from time to time, especially in cases where life events change your circumstances. These would include at least the following:

  • Acquiring or selling a large asset (a vacation home, valuable artwork, etc.)
  • When you get married or divorced
  • Having a child, or when your children leave home or pass away

Everyone can benefit from a will, regardless of their assets. Not everyone needs a complex will or formal estate plan, but if you have fairly extensive assets or complex plans for distributing your property, you may want to seek out professional help to draft the documents. Individual financial circumstances and preferences vary widely and often don’t match up to pre-determined templates or forms that are freely available on the internet so it is best to work with attorneys that are experienced in their field. The team of experts at AED Attorneys can advise your family on the process, assist you in getting the paperwork right and give you peace of mind that your last wishes will be carried out as you have intended.

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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