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.

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.

For those unfamiliar with the process, estate planning seems like “just another difficult and arduous legal procedure”. The thought of distributing your property when you are no longer there, is difficult to imagine. There is an easy way to ensure that even the most complex inheritance documents translate accurately and are represented as intended: A Letter of Instruction.  

A Letter of Instruction, also called a Letter of Intent, has the purpose of clearly communicating the intentions of the deceased to the executor (or anyone else who may need to interpret the contents). Such a document supplements the will as a step-by-step guide on how to proceed with estate planning or clarify some detail that was left out of the will.

For example, anyone who receives a Letter of Instruction upon death should know how to proceed with handling of the estate. The final Letter of Instruction should outline the executing the will and also specify who will receive specific or sentimental items. The Letter of Instruction serves as a key to translate the will.

In addition to supplementing a will, the letter also serves as a way for you to express your last wishes in a more personal format. The Letter of Instruction does not have to follow the same rigid structuring as many of its legally binding counterparts, as it has no legal authority in itself, and is not a public document. Because a Letter of Instruction is more personal, such a document usually provides some comfort for the family and simplify the inheritance process for any heirs who may not be familiar with the legal terminology associated with estate planning. Although the executor does not require a Letter of Instruction in order to proceed, such a document will serve as a guide to follow in instances of ambiguity.

Since this is a document without any legal ramifications, there is no prescribed format for a Letter of Instruction. Some contain detailed instructions on how to proceed with the Will, while others simply provide general guidelines to follow, for instance what to do with sentimental items, pets or donations.

The benefits of a well-crafted Letter of Instruction greatly outweigh the drawbacks of not writing one. The natural flexibility and non-legal nature of these letters imply that there is no right or wrong way to write them, but there are a few unwritten rules that you should take note of. Apart from a comprehensive list of all the assets in your possession and instructions for how the executor should disperse these assets, your Letter of Instruction should include the following:

• A list of each account beneficiary and their contact information
• Any papers pertaining to your marriage status and/or citizenship
• Where to find important documents (tax returns, birth certificates, Title Deeds, etc.)
• The contact information of creditors or policy holders (mortgage, car loan, insurance policies, etc.)
• The contact information of previous attorneys, accountants, brokers, financial advisors, etc.
• The date and your ID number
• The location of any assets that are not easily accessible (including safe deposit boxes and their keys)
• The login credentials pertaining to any financial accounts you may have (passwords, PIN numbers, account numbers, etc. So make sure the letter of instruction is in good hands.)

A Letter of Instruction looks somewhat like a Will in the sense that they both delegate instructions on what to do with assets and who gets them. However, a Letter of Instruction is not a legal document while a Will is enforced by law. For this reason you should not include the distribution of any assets in a Letter of Instruction that are not already included in the Will. Your Letter of Instruction may be incorporated to enable understanding of the process better and can include burial arrangements or guidance on the memorial service. The addition of a letter of instruction to your Will could expedite the estate planning process and, in addition, you can rest assured that your wishes will be carried out exactly as you have intended.

Most people do not know how to write a letter of instruction (or may feel uncomfortable doing so) and feel more confident if you enlist the services of a qualified professional, such as AED Attorneys for guidance. We know exactly where discrepancies are most likely to arise and are more than equipped to help you address them. AED Attorneys can assist you in getting the paperwork right, and handling the 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.

Death is a topic most of us prefer to avoid, but it’s important to know exactly what to expect when it comes to dealing with claiming an inheritance as a South African living overseas. The finalisation of a deceased estate is often a time-consuming and frustrating process and there is additional complexity and exasperation when one of the heirs is an expatriate living abroad.  If you live overseas and are likely to be the beneficiary of either an inheritance or a trust distribution from within South Africa, some advance planning is needed to ensure that payments due to you can be made.

If you live overseas and have inherited money or property in South Africa from a South African estate, you will fall into one of three categories in terms of South African exchange control regulations.

Category 1: If you are a non-resident of South Africa and were never a South African Citizen, you fall into Category 1. Receiving your inheritance in this instance is a relatively uncomplicated process of providing proof of your non-residency status.  You should then be able to send any South African inheritance out of the country with relative ease.

Category 2: If you have already emigrated in terms of exchange control regulations and are therefore classified as a non-resident, you fall within Category 2.  Your inheritance funds can be transferred to you if you can provide proof or confirmation of your emigration.  You will need to be able to provide a South African Reserve Bank reference number (also referred to as the ECA number) or approval which you would have received when you originally emigrated.

Category 3: If you are a South African resident temporarily living and/or working overseas, you fall within Category 3.  This means that you are considered a resident “temporarily abroad” by the South African Reserve Bank and that you are subject to the same exchange control and financial regulations as people living in South Africa.

If you fall within Category 3, you have the following options available to you to transfer your inheritance abroad:

• You can transfer your inheritance funds using your annual R1 million discretionary allowance (SDA) or your annual R10 million foreign investment allowance (FIA). Should you opt to use your SDA, tax clearance is not required but your green barcoded South African ID book or ID card is needed. Should you opt to use your FIA, you will need a tax clearance certificate, a valid SARS tax number and your green barcoded South African ID book or ID card.

• If your inheritance is over R10 million, you will require a special application to SARS and a manual tax compliance letter to transfer your inheritance out of the country.

What if you do not have a valid SARS tax number, you have never been issued with a South African ID book or ID card or it has been lost?  The Taxation Laws Amendment Act, which came into effect in March 2021, brought an end to the option of Financial Emigration.  Financial Emigration allowed South Africans without an identity document or tax number in South Africa, to undergo a “belated emigration” process instead of using the annual allowances, enabling the transferring of inheritances from South Africa.  Post March 2021, the following options are available:

• If you still have your green barcoded South African ID book or ID card but no South African tax number and your inheritance is more than R1 million, you will either need to register for a tax number and apply for tax clearance or demonstrate that you are no longer a resident in South Africa for tax purposes and are no longer active on the SARS system.
• If you were born in South Africa, were never issued with a green barcoded South African ID book or ID card or you’ve lost it, you will also need to demonstrate that you have ceased to be a South African resident for tax purposes and are no longer active on the SARS registered database.

The challenge lies in proving your non-residency status with SARS.  The most common method of proving your tax residency is with a Tax Residence Certificate. If your new country has a Double Taxation Agreement (DTA) with South Africa, the tax authority in the country will be able to issue a certificate showing that you are a tax resident there and not in South Africa.  A Tax Residence Certificate (TRC) is an official document issued by a tax authority that certifies you are tax resident in that country. They’re necessary because of the tax treaty agreements between countries that determine where residents get taxed and, in many cases, protect them from being taxed twice on the same income in different jurisdictions.

Although obtaining a Tax Residence Certificate from your new country is the most common way to prove your non-residency status, there are certain circumstances where you may be unable to obtain one. (for example, if your country doesn’t have a DTA with South Africa). Other factors that could be taken into account to determine your non-residency status are:

• Tax returns or assessments from your new country of residence.
• Proof of a foreign address.
• The type of Visa on which you have gone to the foreign country.
• A letter from an employer in your new country, confirming your date of employment. If you’re self-employed or own your own business, a letter from your tax practitioner confirming the dates you’ve run your business in the foreign country.
• A copy of your passport/travel diary.
• Details of any property that you may still have available in South Africa and the purpose that such property is being used for.
• Details of any business interest that you may still have in South Africa.
• Details of any family members still living in South Africa and the reason thereof.
• Details of your social interests (e.g. gym contract, recreational clubs and societies) and location of your personal belongings.
• Details of any return visits to South Africa, the frequency thereof and the reason for undertaking such visits.

It is recommended that you make use of a professional and knowledgeable service provider with specialist knowledge of South African exchange control regulations and SARS requirements to assist with the process of transferring your inheritance abroad.

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.

Many parents see it as a privilege and a part of their parental duty to assist their children with funding for education, the purchase of a vehicle or a home, or to start a business in their lifetime.  We love our children and of course we only want the best for them!  However, what many parents are not aware of, is the South African common law presumption of collation (collatio bonorum) and the impact thereof on a Will. 

Let’s look at a practical example: Joe has three children – John, Jack and Mary.  During his lifetime he assists his son John with a cash amount of R2 000 000 to purchase a house. Prior to this gift to John, Joe’s estate is estimated to be worth R10 000 000. When Joe passes away his estate is deemed to be worth R8 000 000 and his will stipulates that the estate should be divided equally between John, Jack and Mary.  This does not sit well with Jack and Mary.  They feel that equal distribution of the estate is unfair because John received a substantial financial benefit from his father while he was still alive and that the distribution of the estate should be adjusted proportionately.  Collation is the formal process that Jack and Mary can revert to in this instance.

Collation is rooted in the belief that a testator will want his/her estate to be distributed equally among children or descendants. This means that if an heir received a substantial financial benefit from a testator during the testator’s lifetime, collation may be applied to the heir’s inheritance and the value of the inheritance may be adjusted accordingly.  To determine the division of the inheritance, one must add the value of all of these “substantial financial benefits” to the value of the original estate. The net sum then needs to be divided between all the heirs according to their share in the original estate.

Collation only applies to the testator’s descendants who share as heirs in the residue of an estate and it is applied to your will automatically by operation of law.  If you do not have a will, it will automatically be applied to your intestate heirs.  Let’s go back to our practical example mentioned earlier.  If you leave your estate in equal shares to your three children – John, Jack and Mary – and John received a considerable financial contribution from you to purchase a house which Jack and Mary did not, collation will be applied to offset the financial contribution against Johan’s inheritance.  Other typical examples include funding for tertiary education, start-up capital for a business, settlement of debts, funding of large medical expenses, etc.  The size of the financial benefit is usually assessed in relation to the size of the testator’s estate.

If you do not want collation to apply to your will, it is imperative that you stipulate your wishes clearly in your will.  An example of such a stipulation would be “I direct that my children need not collate any of the financial contributions they received from me during my lifetime and I remit collation so far as they are concerned.”  Similarly, if it is your wish for one of your heirs to collate, this should also be clearly stipulated. An example: “I record that during my lifetime I gifted to my son, John, an amount of R2 000 000 to enable him to purchase a house and I direct that he collates that sum with my estate before he is paid his inheritance in terms of my will.

Collation is another example of why it is of utmost importance to use an estate specialist when drafting your will and doing estate planning.

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.