Deceased Estates Administration | AED Attorneys

When you die… did you LIVE?

Written by Design on October 7, 2021. Posted in Deceased Estates Administration.

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

Written by Design on September 23, 2021. Posted in Deceased Estates Administration.

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

Written by Design on September 2, 2021. Posted in Deceased Estates Administration.

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.

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A living funeral – why should you consider one

Written by Design on September 2, 2021. Posted in Deceased Estates Administration.

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?

Written by Design on July 28, 2021. Posted in Deceased Estates Administration.

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.

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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?

Written by Design on June 15, 2021. Posted in Deceased Estates Administration.

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.

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Living insolvent person vs. a deceased insolvent estate

Written by Design on June 7, 2021. Posted in Deceased Estates Administration.

Living insolvent person vs. a deceased insolvent estate

In its simplest definition insolvency is a state in which one’s debts (fairly estimated) exceeds one’s assets (fairly valued). It indicates that debts cannot be paid and action needs to be taken so one’s creditors can be paid. There are different options available to insolvent individuals, like debt review or sequestration. A deceased estate is declared insolvent when the realized assets of the estate will be insufficient to fully meet all the debts and liabilities to which it is subject. It is the executor’s duty to ensure that appropriate actions is taken should a deceased estate be declared insolvent.

Recourse for a living insolvent individual

If you reach a state of insolvency as an individual, you have to decide on a course of action to ensure that you can pay your creditors. If you can’t and you leave debs unpaid, there are also steps creditors can take, like requesting the Court for a sequestration order against you.

It is preferable for you to get ahead of your situation and rather file for such a request yourself. There are three main legal options available to individuals facing insolvency: debt administration, debt review, and sequestration.

Debt administration is applicable if your total debt doesn’t exceed R50,000. It will usually reduce your instalments and extend the repayment terms of you debt. A debt administrator will manage your finances. These individuals are not required to register with a regulatory body and you should always be on top of your affairs when under debt administration.

Debt review will usually allow you to repay debts at a reduced interest rate and also extend the terms of your debt. A debt counsellor will help you through the process. Debt counsellors are required to register with the NCR. He or she will renegotiate payments on your behalf, but creditors can reject the plan your counsellor comes up with.

During Sequestration a trustee is placed in complete control of your estate and he or she usually has to realise your assets in accordance with the Insolvency Act 24 of 1936 to the benefit of the creditors. It often, but not always, leads to the sale of your house, car, and other assets.

A deceased insolvent estate

When an individual passes away his/her estate, the assets, income and liabilities, is vested in the Master of the Court and an executor(s) is appointed to manage the estate. The executor has to determine the state of the estate. Usually he/she has the see to the payment of the estate’s creditors. If the executor finds that the estate is indeed insolvent, it has to be administered in terms of Section 34 or the Administration of Estates Act. The Insolvency Act 24 of 1936 can also play a role.

The main duties of the executor are to inform the creditors as to the estate’s insolvent status and realize the assets. The creditors can, however, direct the executor to surrender the estate in accordance with the Insolvency Act. If this does not happen, the executor shall continue to realize the estate.

Creditors with a claim less than R1,000 shan’t be reckoned. Creditors that hold moveable assets as security have the opportunity to place a value upon it which will be reckoned as unsecured. This claim shall be paid out before other creditors. The executor will ultimately proceed to realizing the estate and submitting an account to the Master of the Court. Thereafter he/she shall distribute the proceeds amongst the creditors according to the order of creditors’ preference in a sequestrated estate as lain out in the Insolvency Act. If any person that needs to receive monies cannot be found, the executor pays that into the guardian’s fund for safe keeping.

When dealing with a deceased estate, the surviving family and heirs can be caught off guard if it turns out to be insolvent. AED attorneys will always explain what is happening and why it is happening in the simplest of terms to ensure that you are always in the know

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Provident Fund Legislation – Changes from 01 March 2021

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

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

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

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

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

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

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

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

What Are The Obligations Of The Provident Fund Trustees?

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

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

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

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

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

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

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

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

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

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How A Pandemic Changed Funerals in South Africa

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

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

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

Level 3 Funeral Arrangements

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

How Traditional African Funeral Rituals Are Affected

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

Curtailing the Celebration Of The Deceased’s Life

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

Missing Out on Important Closure

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

Financial Impact of The Pandemic On Funerals

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

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

Will Funerals Return to Normal Post-Pandemic?

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

Secure Your Family’s Future After Your Passing

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

Funeral Policies in South Africa

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

Benefits of Elite Funeral Insurance Plan*:

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

Additional Benefits of Elite Funeral Insurance Plan*:

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

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

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

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

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Should Your Pets Be Included in Your Will?

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

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

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

What Will Happen to Your Pet After You Die?

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

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

Estate Planning for Pets

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

Choosing a New Owner

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

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

Establish a Trust for Your Pet

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

How to Fund a Pet Trust

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

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

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

Instructions to the Caregiver After Your Death

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

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

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

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

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

Leave Behind a Legacy

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

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

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

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

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

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