Effects of signing surety on a bond and what happens on divorce or death

Effects of signing surety on a bond and what happens on divorce or death

What if your life partner, business partner, family member or friends comes to you one day saying they want to take out a loan, but the bank says their monthly income and net asset value does not make them financially viable. The bank also said they can get a loan if someone signs surety on it. They tell you that they know they are good for the repayments every month, but they ask you to please sign surety. There are some important things to know before you make a yay or nay decision.

What is surety

Suretyship is a contract entered into on behalf of the principal debtor in favour of a creditor. In laymen’s terms, you sign the contract as a third party confirming that if the debtor cannot pay the creditor, you will do so in his stead. It is not a contract that should be entered into lightly. You should read every detail before even contemplating signing it as the wording of the surety can bind you in different ways.

You could be surety for a particular debt (like a home loan) or for a specific amount only. When this debt is paid off by the debtor, you are no longer surety to any form of debt owed by the principal debtor, though you should always confirm that your suretyship has been cancelled.

An alternative type of suretyship is being surety to the person. In this case, you are not released from the contract when a particular debt is paid, and you might be held liable for that person’s debt years later. If the contract does bind you to the person, you should make sure there is a clause in the contract providing you with an avenue to cancel your suretyship. When a particular debt is paid, you can then request to be relieved of this obligation.

What happens to the surety when you divorce?

If you are married in community of property, you and your spouse should both sign the suretyship agreement to make it enforceable. Both spouses are ultimately liable for the debt as they have a joint estate. If the signing of suretyship is done in the ordinary course of a spouse’s profession, trade or business, this is not necessary.

If you are married out of community of property, only the spouse that wants to act as surety needs to sign the contract as his/her estate and finances are legally seen as separate from the spouse.

Should the spouses get a divorce, it does not mean the suretyship agreement is null and void. If they were married in community of property, it is best to see if the suretyship can be renegotiated so only one person is surety. If this does not happen, both individuals could still be held liable even after divorce. If they were married out of community of property, the suretyship agreement is still relevant and enforceable. If the one spouse was surety for the other and they then get divorced, it does not change the suretyship agreement.

What happens to the surety in the case of death?

If the principal debtor should pass away, his/her creditor can claim against the deceased estate for the money owed them. If the debtor’s deceased estate does not cover the repayment of the debt, the creditors can claim the debt from the surety (person that signed the suretyship agreement).

If the surety passes away, a number of things could happen. If the loan is much smaller by that point or the principal debtor’s financial situation has improved, it could be that the loan agreement is changed to not included a suretyship agreement. Alternatively, if this is not the case, the principal debtor could ask someone else to be surety and have the suretyship assigned to that individual for the remaining amount of the loan. Should neither of these be feasible, it could be that the creditor claims the outstanding amount of the loan from the principal debtor and upon his/her possible inability to pay it, the debt can be claimed from the deceased estate of surety.

Think before you sign

Signing a suretyship agreement should be done with caution. Ensure that you have read and understood the contract wholly and completely. If you are married in community of property, ensure that your spouse also signs for it and understands the agreement completely. Be sure that the terms are clear and that you know exactly when the agreement will come to an end and when you will no longer be liable for the principal debtor’s debt.

If you need assistance in setting up a suretyship agreement, or in fully understanding such a legally binding contract, get in touch with AED.  

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.

Death and Not Legally Married

My life partner passed away and we weren’t legally married, now what?

There are various ways to get married in South Africa. There are also various reasons that a couple would be life partners, but not get legally married. These reasons are often personal in nature and one can only speculate as to what they are. What we can know for certain, however, is the consequences of one member of the life partnership passing away and the possible difficulties for the remaining member.

(Not) Legally married

With all the different customs and cultures in South Africa, there are different ways in which people want to get married and different things that people think are important for a marriage. As far as the law is concerned, though, two people can get married in terms of a civil marriage, customary marriage, civil union, and a religious marriage. Note that a religious marriage is not recognised as a legal marriage under South African law, but in certain instances, the spouses are protected by the law.

A civil marriage can only be entered into by a man and a woman. Unless an antenuptial contract is signed stating otherwise, it is automatically a marriage in community of property.

A civil union can be entered into by two people and by persons of the same sex. As with the civil marriage, it is automatically in community of property unless your antenuptial contract is different.

A customary marriage is celebrated and concluded as per the indigenous African customary law. It is recognised as a legal marriage according to the Customary Marriages Act. The exact traditions that need to be followed may differ from community to community, but generally, lobola must be paid after which the necessary rituals and celebrations must take place. A customary marriage also allows for polygamy, though the groom must apply for permission to the High Court and the customary marriage must be registered at the Department of Home Affairs within three months.

A religious marriage is entered into in terms of a religion like the Islamic faith. Although it is not legally recognised, spouses are protected against domestic violence and when a spouse dies, the surviving spouse may

  • Approach the Magistrate’s Court to request maintenance against the deceased estate
  • Inherit in terms of the Intestate Succession Act if no will was left behind  

If your partnership does not fit into any of the categories above, you are not married in the eyes of the law.

No such thing as a common-law marriage

Many South African live together with the understanding that their years of partnership and cohabitation constitutes a common-law marriage with all the legality that is involved in a marriage. This is false and they are just cohabiting a space with no legal commitment in terms of marriage. A cohabitation agreement can be entered into that can regulate financial and property matters, like who pays the mortgage and who pays for living expenses. It provides financial stability, but they are still not legally married.

So, what if my partner passes away?

It is clear that if you and your partner were not married in any of the manners as set out above and you had no type of contractual agreement, the surviving spouse is left with no legal recourse to make any claims against the deceased estate.

A partner is only entitled to inherit from the deceased estate if they were legally married, and a cohabitation agreement does not give you the same right.

The only way to ensure your life partner inherits from your deceased estate and is legally protected after your death is to draw up a will and include him/her in it.

At AED Attorneys, we understand that every relationship is unique. We also understand that the law will place you into certain legal boxes. Having an airtight will is one of the best ways to protect your loved ones, married or not, after your passing and that is where we can help.

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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Uif

When a family has to deal with the death of a loved one, it places a lot of emotional stress on them. If that loved one is also the breadwinner or important monetary contributor to a family, the added financial strain makes it even more difficult to grieve and deal with your emotions in a healthy manner. One financial recourse that is possibly available to the family members left behind is the UIF Dependant’s Benefits which allows dependants of UIF (Unemployment Insurance Fund) contributors to claim.

UIF contributions

The Department of Labour states that the “Unemployment Insurance Act and Unemployment Insurance Contribution Act apply to all employees and workers, but not to:

  • workers working less than 24 hours a month for an employer
  • learners
  • public servants
  • foreigners working on contract
  • workers who get a monthly State (old age) pension or
  • workers who only earn commission.”

The UIF that is payable amounts to 2% of the value of each worker’s pay per month – 1% is contributed by the employer and 1% by the employee.

When a worker becomes unemployed or is unable to work due to maternity, adoption, parental leave, or illness, UIF provides short-term relief to these workers if they contributed while working and are not exempt as stated above.

How can dependants of a deceased worker receive UIF?

UIF is available to the dependants of a deceased worker if you are a:

  • spouse
  • life partner
  • guardian
  • child of the deceased under the age of 21.

There are some exclusions, though. The dependants cannot only claim if the worker received benefits from the Compensation Fund or an unemployment fund as defined in the Labour Relations Act or if the worker was suspended from claiming because of fraud. Children can only claim if there is no spouse of life partner or if the spouse or life partner does not claim within 18 months of the worker’s death. The benefit is payable to a dependant for a maximum of 238 days and is based on the income the breadwinner was earning before he/she died.

How to claim…

A dependant must claim within 18 months of the worker’s death, and you will need to hand in various documents along with the application form. These are:

  • Your Identity Document
  • Copies of the deceased’s last six payslips
  • The employer’s details on form UI19
  • A certified copy of the death certificate
  • For the spouse: a certified copy of your marriage certificate
  • For the partner: lobola letter or an affidavit in case of life partners
  • For the children: proof of guardianship (if applicable), a letter confirming the minor is still in school, birth certificate
  • Proof of your banking details

When will the money be paid out?

According to the South African Labour Guide, the payments should start within 8 weeks of registering. Money is then paid out every 4 weeks until the benefit is used up. If you do not receive a payment in that time, you should contact the Labour Centre and ask them to investigate the delay. There is, however, anecdotal evidence that payments have taken much longer than the 9 months. The money paid out is not taxable, but if the UIF overpays an individual, you will be expected to refund that money.

In conclusion

Dealing with legalities and Governmental Departments is not what we want to do while we grieve the loss of a loved one. Sometimes, though, the financial difficulty we are placed in when the breadwinner passes away leaves us with no other option. Luckily, we do have options available to use, one of them being the UIF.

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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Executors or Brokers – Who deals with your policies after you die

Planning for the future is an activity that we all should engage in from time to time. We should not just plan for the immediate future, but we should keep in mind that some of the planning we do now can greatly affect the people we leave behind when we pass away. That is why proper estate planning is essential and having a life insurance policy is also very important to adequately provide for our loved ones.

The people involved with planning your estate is not necessarily the same people that are involved with providing you with a life insurance policy. So now the question is, when you pass away, who is responsible for your insurance policy – the executor of your estate, or the broker of your policy?

What are their roles?

Fully understanding who deals with your policy will be easier once we have clearly defined the roles of your executor and broker.

The executor of your deceased estate

The executor is responsible for administering your deceased estate once you have passed away. He/she is responsible for obtaining all the legal documents, like the death certificate and a list of all the assets and liabilities that are part of the estate. They are also responsible for reporting to the Master of the High Court through which they have been appointed. The executor has to make the death known to the deceased’s creditors and provide the opportunity to institute claims against the deceased estate. The executor is also responsible for closing the deceased’s bank accounts and opening new ones where the money of the estate will be kept. He/she has to determine how the liabilities are to be paid – is there enough money or must some of the assets be sold. The executor has to draft accounts for public inspection and lodge them with the Master of the High Court. If they are approved, the executor must pay the creditors and distribute the deceased estate accordingly.

Your broker

Your broker will organise and execute financial transactions on your behalf. Your insurance broker specifically works for you in purchasing the best policy that will meet your needs. They use their technical, legal and industry knowledge and experience to advise you on what your options are whenever you have to renew a policy or whenever a claim is filed against a policy.

How does your insurance policy factor into your deceased estate?

Certain policies and funds do not form part of your deceased estate – these include your retirement fund, living annuity, and business interest protected by a business assurance. Your life insurance policy can also rank among the policies not included in your estate in certain circumstances. As these do not form part of your deceased estate, they are not administered by the executor.

Your life insurance policy is usually deemed an asset in your deceased estate and thus forms part of payable estate duty. However, if the policy is recoverable “by the surviving spouse or child of the deceased under a duly registered ante-nuptial or postnuptial contract” it is not included in estate duty and not part of the deceased estate. In such a situation, the named beneficiary (spouse or child) is responsible for filing a claim with their broker who will then set the process in motion to have the insurance policy be paid out to them. This payment has nothing to do with the deceased estate, and the executor, responsible for administering the estate, is not involved with it at all.

If your estate is the named beneficiary, however, and there are several reasons why one would want to name your estate as the beneficiary, the policy forms part of the deceased estate, it is part of the calculation for estate duty as well as the calculation determining the executor’s remuneration. In this situation, the executor has to file a claim for the insurance policy to pay out. It is still, however, the broker that will actually deal with the claim and see to its payment.

Key takeaways

Ultimately, your broker will handle your life insurance policy and the payment thereof after your death once they have received a claim for it. The executor does not deal with the policy, though they might need to file the claim, depending on who the beneficiary is, and they might also need to deem the policy an asset in your estate when the estate duty or executor’s remuneration is calculated.

The relationship between your life insurance policy, estate planning, estate duties and executor’s remuneration can become a very complicated one, and it is best to have professionals assist you with your estate and life insurance planning. For the most part, though, the executor of your deceased estate will have little reason to deal with your life insurance policy as it is the named beneficiary of that policy that will deal directly with your broker (or insurance company).  

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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When you die… did you live?

At one point or another, we all ask the same question. How we phrase it might differ, but it comes down to this, “Why am I here?” Your question might be, “Why do get up every morning?” or “How come I don’t feel fulfilled?” or “Why can’t I just be happy with what I have?” Asking these questions doesn’t make you weak, it doesn’t make you egocentric, and it doesn’t make you vain. They are all natural questions on our walk through life, but they do lead to a question you need to answer before any of them… “Are you truly living your life – your best life?”

(Not) picture perfect

It is so easy to judge our lives by what we see from other people. They have wonderful relationships, great jobs, go on adventures (even if they just camp out in their back yard). We forget that what we see on Facebook and Instagram is not their whole life. They are only moments and often the best moments. People very seldom show the true effort that goes into making those moments – the weeks on end of deadlines that leave you exhausted and that, for a while, make you hate your job, the argument that lasted an entire week and made both parties cry but that led to a point where the relationship was stronger, the budget that can’t quite make it to the end of the month so camping out in the back yard is all they’ve got. Fact is, those moments, the ups and downs, is what life is all about. Sometimes we cry at night and smile during the day. We just keep aiming for the end of the tunnel because if we look around, we just might give up.

It’s not all bad all the time

Read that again… it’s not all bad all the time. Even on our worst days, there is something good. It might not seem so and here is the thing, we have to learn and practice to see it. We need to learn to find joy and gratitude in the big things and the small, or else we will only see the bad. If you get up this morning and the sun is shining… hey… the sun is shining! If you happen to look up during the day and there is a gorgeous sight of gold-tinged clouds and sun rays peaking through, then you saw it. So many people missed that moment, didn’t see that beauty, but you did. If you pass a stranger and they look you in the eye and give you an encouraging smile, acknowledge it and realise, we are all on different boats in the same stormy sea and we can support each other with just a smile.

These things seem so minutely small in the greater scheme of things, but it can be just enough to help you take a deep breath, square your shoulders and keep going. If you need more help, there is nothing wrong with that. Talk to a friend and if you need it, talk to a therapist. They are both there to help and support you just like you are there to help and support your friends and family.

Now, why am I here?

That is not a question one person can answer another… but let’s venture out and say that money, fame, and success is not what will make your life worth living. If you just work for a paycheck, getting up in the morning might not seem worth it. If you just work to get accolade on accolade on accolade, it probably won’t fulfil you. If you just want everyone to know your name, you probably won’t be happy. What do you do with your paycheck, your accolade, your good name? Are you using it to make the world a better place and improve the lives of those around you?

There needs to be a balance. Just like the cycles of bad times and good times, there will be times of just working your butt off to get things done but they need to be balanced with knowing why you are doing it and using what you’ve got to the benefit of yourself and others. If you can, take that holiday you’ve been saving for months or even years. Use your accolade and good name to maybe raise some funds for a good cause, to work at a fundraiser if you can’t contribute otherwise, to get someone you know a job or empower them to be more… the possibilities are endless.

And if you can’t do any of those right now, remember to keep counting your blessings whether they be friends, health, a home, love, faith, a job, etc. And smile at the stranger walking past you, they just might need some encouragement today. 

It is important that you live your life and do the things you keep putting aside! Always make sure that your affairs are in order before anything else. Visit https://sonjasmith-funerals.co.za/my-life-file/ and download the list of important personal documents that should be kept in a safe place, your LIFE FILE.

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Children’s school fees

After a parent dies, is the surviving spouse still liable for school fees even if there is no money in the estate?

When a spouse dies it is never an easy process and there are suddenly a great number of things that need to be addressed in addition to dealing with the grieving process. Being married in or out of community of property becomes applicable, whether the deceased spouse has a will or not is also very important as it details who is to inherit and in what manner. If a deceased leaves behind a spouse as well as minor children, things can become even more challenging. There are a great number of laws and variables that can influence events after the death of a spouse including the responsibilities of the surviving spouse and the maintenance due to the children. For the sake of this blog, we will assume that the parents of the child were married or in a permanent civil partnership and living together and that they were the biological/legal parents of the child. 

What happens after the parent of a minor dies?

The surviving spouse becomes the legal guardian of the child. In its most basic form, that is the law. There are situations in which the surviving spouse will not be the child’s guardian, but preference will first be given to the parent. The surviving spouse (parent) is completely responsible for the child as per the Children’s Act of 2005 which requires of a parent to care for a child, maintain contact with the child, act as guardian of the child, and contribute to the maintenance of the child. That contribution can come to rest squarely on the shoulders of the surviving spouse. Here is a very important point though, when a parent dies, their parental responsibilities don’t die with them. Parental responsibilities for a dependent child only falls away upon the death of said child. A dependent child is not just a minor and if the child is older than 18 but still require support from the parent (for example the parent claimed responsibility for tertiary education fees), the child can still claim support from the deceased parent’s estate.

How can the deceased estate help support the surviving spouse and child(ren)?

Before any inheritance claims or payments can be addressed, the debt of a deceased estate is paid. The creditors will always be paid first. Thereafter the beneficiaries of the will can be dealt with or, in the absence of a will, according to the Intestate Succession Act. The care of a minor child will receive preference and even if a will did not make provision for it, the child’s claim to maintenance will still outrank any other inheritance claim.

It could be that there is no cash in the estate to cover the child’s maintenance. In such a situation, assets could be sold off to cover these costs. It could also be that there is no money in the estate at all after all the formalities have been concluded, cash or otherwise. This could cause some problems for the maintenance of the child and it becomes the sole responsibility of the surviving parent.   

What is the surviving spouse responsible for?

As far as the minor is concerned, the surviving spouse is responsible for everything involving the maintenance of the child as we have already discussed. This includes school fees. As per the South African Schools Act of 1996, all children between the ages of 7 and 15 have to attend school and the parent must ensure that this happens.

What to do if the payment of school fees cannot be made?

If the death of a spouse leaves the surviving spouse in a financial bind (or worse) there are options available to them. The parent has to approach the School Governing Body (of a public school) and apply for conditional, partial, or full exemption from paying school fees. If the criteria for exemption are met, the parent can pay the adjusted school fee (or possibly no fee). We strongly encourage any surviving spouse to take this course of action as a public school has the right to take legal action against parents that do not pay school fees. This is only true if the exemption criteria have been applied and the parent is still liable to pay school fees. Note, though, that a learner cannot be excluded from participating in the official school programme due to the parent’s non-payment of school fees, nor can their reports be withheld. These stipulations do not apply to private schools and these schools could suspend a learner if the parent fails to pay school fees. The surviving parent could request to make an arrangement with the school to allow for the continued education of his or her child or they will need to consider moving the child to a public school.

There are many things that a surviving spouse can be left to worry about upon the death of his/her partner. Having attorneys on your side that will truly listen and explain what is happening in the simplest terms can make the legal side of things much easier and leave you to focus on your family. Get in touch with AED Attorneys when you need assistance with a personal touch.

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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How to help your family in the event of your passing – a legal perspective

When a loved one passes, chaos often ensues – emotional chaos if not anything else. Added to that stress is the handling of the deceased estate and all the legalities of seeing to it. If the family that is left behind doesn’t know where to find the deceased’s paperwork, the last will and testament, insurance policies, etc, it can delay the finalization of the deceased’s estate by months as they need to find documents and jump through hoops. When this paperwork is all in order, however, and left for the family to find, it can make things much easier.

Some people choose to make a physical file and inform some family members where it is, others choose to make an electronic file and share it with a loved one. Either way, if the file is regularly updated and accessible, you have made sure that there is less stress and tension after you pass.

What should I have in my file?

The short answer is every legal and financial contract you have, copies of everything and all the info they need to access your accounts, policies, and password protected devices, files, and website.

The longer answer is the following list:

  • Funeral arrangements (if you have made any beforehand)
  • Last will and testament
  • All your policies
    • Insurance policies
    • Pension policies
    • Any policy that will potentially pay out upon your death
  • Medical insurance details
  • Important contact details
    • Your lawyer
    • Your banker or financial advisor
    • Your executor
    • Your employer (including the most recent salary slips)
    • Children’s chosen guardian (if applicable)
  • Possessions/Assets/Properties
    • Keep a detailed list of all your assets, possessions, heirlooms to be inherited and their approximate values.
    • Keep a detailed list of any property you own – include all the relevant information like the most recent municipal account, title deeds, mortgage details, rental agreements, etc.
  • Financials – have details available of all your relevant financial dealings and details
    • All your bank accounts
    • Copies of your most recent bank and credit card statements
    • All investments and shares you have
    • Details on how to gain access to your bank accounts and investments
    • All your creditors (if you have any) and the details of the credit you owe
    • All your debtors (if you have any) and the details of debt owed to you
  • Originals or copies of all the important identity documents or certificates
    • Identity document
    • Passport
    • Driver’s license
    • Birth and/or marriage certificate
    • Antenuptial contract or divorce agreements (if applicable)
    • Living life plan for the kids (if applicable)
    • Tax and VAT numbers (if applicable)
    • The nominated/proposed executors and/or guardians ID
    • Beneficiaries IDs
    • Firearm licenses (and details about the location of the firearms and contact details of a trusted firearm dealer)

While it is not a necessity, adding letters to chosen family members in this file can also help them after your passing. If a loved one passes suddenly, the legal documents in your file will probably not provide all the information family members need. If you are an organ donor, for example, and your family doesn’t know, they might find the idea difficult to accept. A letter stating your wishes and choices could provide the final understanding they need.

Keep it safe

The electronic or physical file with all your information must be kept safe and secure. You might not want to put all the information in one place but choose to let one family member keep some information and another family member keep different information. You might want your lawyer to keep it all and just provide your family with his/her contact details.

Part of keeping it safe is also keeping it updated. Some documents, like your payslips, will need to be updated monthly and others, like beneficiaries IDs, will need to be updated whenever changes are made to your will

Should an attorney help you?

It is not an absolute must that an attorney helps you curate the file with all your important information, though it is advisable. In general, everyone should have the same basic information, but no two lives are the same and one person might need to add a document that the next does not.

It is also important for an attorney to assist you in drafting your will and keeping it updated. It will bypass any uncertainty about what happens to your estate. AED has extensive experience in this and will guide you with a kind, knowledgeable hand to draft an airtight will and also create an effective file in the case of your death.

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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A living funeral – why should you consider one

Death is often a taboo subject to speak about, especially if a loved one has become terminally ill or is in his/her old age and growing frailer by the day.  Talking about the fact that the person will pass is, for some reason, unacceptable. During the funeral, we come together to grieve, cry, and praise and remember the person that has passed. It is often how we deal with such an immense loss and there is nothing wrong with it. There are various stages of grief we need to go through, and a funeral helps facilitate at least one of them. What about celebrating someone’s life with them? Celebrate and eulogise them before they are gone and tell what you want them to know. This is a living funeral.

A living funeral?

A living funeral (pre-funeral or Seizenso) is a gathering centred around a person that will soon pass. There are many practical benefits to holding such an event. It is often a perfect opportunity the read the will of the person that will pass and for him/her to clear up any confusion. They can make their last wishes clearly known so no one can contest anything later. It can also be an opportunity to celebrate a life well lived with the person rather than after they are gone and can’t enjoy the celebration with you.

In Japan, living funerals have been held since the 1990s as a way for elderly parents to unburden themselves from their children. After a living funeral, the parent expects nothing from the children, not even a funeral, when they pass. It has sparked displeasure in some because it denies their ancestral significance and others see it as a way for the living to brag about their accomplishments to a captive audience. A living funeral can be and is much more, though.

Actually say goodbye

During a living funeral, your loved one and all their family and friends have the chance to actually say goodbye. It provides the opportunity to eliminate the regret when a person didn’t have the opportunity to see the departed one last time. You can give and receive a hug and share your love for each other and any other memories that are significant to you. Maybe there is one specific memory that will always be a part of you and that formed your character. Maybe they did something life-changing for you and they don’t even know it. This is the chance to share all that. Maybe there are things people need to forgive and ask forgiveness for. During a living funeral, you can do that. It creates an opportunity for all involved to be at peace with the fact that everything has truly been said and done.

Helps deal with anticipatory grief

When you know a loved one will pass soon, we often experience anticipatory grief. It is a complex and difficult emotion to deal with, and a living funeral can help us do just that. As with a funeral after passing, the living funeral creates a safe space in which we can give expression to our emotions of loss, even if it is the impending loss we feel. In this safe space, we can acknowledge those feelings and process them. A part of anticipatory grief is also the anger we feel that the person we love will no longer be there. Having one last hurray with your loved one could help you cope with those feelings of anger too.

Prepare for the absence

When we fully acknowledge why we are having a living funeral, we can help our loved ones prepare for the absence they will experience. It creates a very unique opportunity to explain to the children in our lives what death is and what they should expect. A funeral with the deceased body can be traumatic to some children, but they also need to understand what has happened, why they will never see a loved one again, and why that person’s life is being remembered with such a sombre occasion. The living funeral can aid in explaining all this to children and help them to also see that it is indeed a celebration of a life well lived, not just a sad occasion.

The idea of a living funeral might still be very foreign to many people. It is, essentially, your last party where you can laugh, cry and celebrate the wonder of being human and having shared a life with so many people that love and value you. Always remember that the Sonja Smith Funeral Group is available to chat day and night and can be contacted at 079 895 4414.

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How does POPI affect the administration of a deceased estate?

The POPI Act is legislation that has been put into place to protect the personal information processed by public and private bodies. To date, 66% of countries worldwide now have legislation to this effect, with a further 10% having draft legislation according to UNCTAD. Not only is South Africa concerned with data safety, but the use and sharing of personal information to third parties without the consent of the consumer or prior notice is an international concern. This one act affects everyone in the country. Public or private bodies (like law firms) don’t have a choice to comply or risk being charged a hefty fine or jail time and losing their reputation.

POPIA

The POPI Act recognises that “the right to privacy includes a right to protection against the unlawful collection, retention, dissemination and use of personal information.” At the same time, it bears in mind that we live in an information society, and in this society “the need for economic and social progress requires the removal of unnecessary impediments to the free flow of information, including personal information.” This means that the processing of personal information by public and private bodies will be regulated “in a manner that gives effect to the right to privacy subject to justifiable limitation that are aimed at protecting other rights and important interests.”

The Act does not specifically mention that it regulates the administration of a deceased estate. That, however, is the beauty of law as there are several legislations and regulations that all work together to ensure a deceased estate is adequately, legally, and efficiently administered.  These now include the POPI Act protecting the privacy of the individuals involved.

Administering a deceased estate under POPI

When all is said and done, the manner in which a deceased estate is administered will not change all that much. The lawyers and courts involved still need access to the involved individuals’ personal information to complete the administration and will have to keep that information on record. With POPI, they will need to pay more attention to how they store it, though, as the safety of the information is what is truly important. This is not a new concept. Law firms, courts, banks, and other bodies have needed to store and share sensitive information long before POPI came into effect. The administration of the deceased estate and the processing of the necessary data is already highly regulated, which might make one think that the POPI Act is redundant in these situations – not so.

In a world where it is easier than ever to click a button and transfer data, added security measures are necessary. It provides the data subject with clear recourse should his/her data be collected, stored, and used irresponsibly. It also refocuses public and private bodies’ attention on how they process their clients’ data.

Consumers’ attention has also been drawn to how their information is processed, and they have a responsibility too. They should only provide their personal information to reputable public and private bodies. They should think twice before giving their consent for a public or private body to share their information. They should only consent to the sharing of information when it is needed to complete an official process, like administering a deceased estate. 

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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Do I have to report my late spouse’s estate if he/she did not own anything, but we were married in a community of property?

When a spouse passes away, there are a great number of things that must happen, and you are often responsible for a lot of them. You might have to locate the will, call his/her employer if they were employed at the time, talk to your insurance company, notify your accountant, change the property titles, and more. Your marriage status, in or out of community of property, will have a big effect on exactly what happens when a spouse passes away.

In or out of community of property

Being married out of community of property means that what is mine stays mine and what is yours stays yours even after you are married. The estates don’t join into one shared estate and all assets and liabilities remain each spouse’s own responsibility. You can choose to have an out of community contract with accrual, however, where spouses share the assets that accumulate after they got married and increase their wealth together.

Being married in community of property means that everything you had before your marriage is joined into one shared estate and everything you gain after marriage is also part of that joint estate. The assets and liabilities are effectively shared 50/50. Both parties are responsible for the debt of the individual and any financial decisions must be agreed upon by both spouses

What does all this mean when a spouse passes away?

If you are married out of community of property excluding accrual, your spouse’s estate will be wound up. If there is a will, it will usually be adhered to, except if there are discrepancies or claims made against it. If accrual was part of the contract, it can be a bit more complicated, and the details of the contract will determine much of what happens. Some assets, for example, can be excluded from the estate to which accrual applies.

If you were married in community of property, things can be quite complicated at first. The question of whether you should report your late spouse’s estate because he/she did not own anything is not really applicable, as your late spouse did not have an estate, you had one together. That joint estate must be reported to the Master of the High Court.  

That estate needs to be dissolved because there cannot be a joint estate with just one owner. The surviving spouse could be left in a tough spot as an executor needs to be appointed after the estate is declared and the solvency of the estate determined. While this takes place and upon reception of the death certificate, banks usually freeze the accounts, and the surviving spouse might not have access to the shared finances even though he/she has claim to 50% of the value of the net joint estate. Any accounts that were not joint accounts, i.e. accounts in the surviving spouse’s name, will not be frozen.

After the executor is appointed and the solvency determined, the debts, for which the surviving spouse is also partially liable, need to be settled. Once this has taken place, the surviving spouse becomes entitled to 50% of what is left, and the deceased half of the estate will be distributed as per his/her will should there be no discrepancies and no claims against the will.

What should I do?

There are several important considerations to keep in mind. Firstly, if you are looking to get married, consider if you want to get married in or out of community of property. If you choose out of community of property, have a detailed ante-nuptial contract drafted to eliminate confusion upon the death of a spouse. Secondly, you should talk to your spouse about what will happen and what your wishes are when you or your spouse should pass away – make sure you have the documentation in place to have your wishes carried out. Thirdly, you should have a detailed will drawn up by competent attorneys that have your best interests at heart. At AED Attorneys, we understand that when dealing with the death of a loved one, you don’t want to also struggle with legal matters. We will help you draft a will to ensure that on the legal end, things go as smoothly as possible.

If your spouse has passed and you do find yourself in a difficult situation concerning your joint estate, we will assist you face-to-face and truly listen to what you have to say to resolve the matter legally and with as little hassle to you as possible.

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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