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Missing Heirs in South Africa: How Estates Are Finalised Without Them

Written by kevin Cartmell on . Posted in Conveyancing, Wills & Trusts.

The administration of a deceased estate becomes significantly more complicated when heirs cannot be located. In South Africa, it is not uncommon for executors to encounter situations where beneficiaries named in a will, or heirs entitled under intestate succession, are absent, untraceable, or residing abroad without updated contact details. These circumstances may delay the administration process and create uncertainty regarding the distribution of estate assets.

This article explains how South African law addresses missing heirs and how deceased estates may still be finalised where beneficiaries cannot immediately be found.

The Legal Framework Governing Deceased Estates

The administration of deceased estates in South Africa is governed primarily by the Administration of Estates Act 66 of 1965 and supervised by the Master of the High Court. The executor appointed by the Master is responsible for identifying heirs, collecting estate assets, settling liabilities, and distributing the estate in accordance with the will or, where no valid will exists, the Intestate Succession Act 81 of 1987.

In terms of the Administration of Estates Act, the executor has a legal duty to take all reasonable steps to identify and locate beneficiaries before the estate can be finalised. This duty is not merely procedural – it reflects the fundamental principle that beneficiaries are entitled to their inheritance and must be given a reasonable opportunity to claim it.

Identifying and Tracing Missing Heirs

Where heirs cannot immediately be located, the executor is generally required to conduct reasonable investigations to trace them. The extent of these investigations will depend on the circumstances of the estate, the nature of the assets involved, and the information available at the time of the deceased’s death.

Tracing efforts may include reviewing family records and identity documentation, contacting known relatives or associates, examining available financial or employment records, publishing notices in the Government Gazette where appropriate, and engaging professional tracing agents in more complex matters. The executor must be in a position to demonstrate to the Master of the High Court that reasonable attempts were made to identify or locate the missing heir before any further steps are taken.

Estates Cannot Remain Open Indefinitely

Although missing heirs may delay administration, estates cannot remain unresolved indefinitely. The Administration of Estates Act 66 of 1965 provides mechanisms that allow executors to proceed with finalisation where beneficiaries cannot be located after reasonable efforts have been exhausted. Prolonged delays not only affect the interests of known beneficiaries but may also give rise to administrative complications and increased costs.

In these circumstances, the executor may apply to the Master for direction regarding the unclaimed inheritance, ensuring that the process continues in a structured and legally compliant manner.

Payment Into the Guardian’s Fund

Where heirs remain unknown, absent, or untraceable, the inheritance due to them may be paid into the Guardian’s Fund, which is administered under the supervision of the Master of the High Court in terms of the Guardian’s Fund regulations under the Administration of Estates Act.

The Guardian’s Fund exists to protect money and assets belonging to persons who are legally incapable of managing their own affairs, minors, and beneficiaries who cannot be located. Funds deposited into the Guardian’s Fund remain safeguarded until the rightful beneficiary comes forward, proves entitlement, and makes a formal claim.

This mechanism allows the estate administration process to continue without permanently depriving missing heirs of their inheritance rights. It strikes a balance between the practical need to finalise estates and the legal obligation to protect the interests of all beneficiaries, including those who are absent.

Missing Heirs and Intestate Succession

The absence of a valid will often increases the complexity of tracing heirs. Under the Intestate Succession Act 81 of 1987, inheritance rights follow prescribed family relationships, which may require executors to identify extended family members, descendants, or relatives who have had limited or no contact with the deceased.

In some cases, heirs may reside outside South Africa or may not be aware of the deceased’s death. These factors frequently extend the administration process and increase the need for formal tracing procedures. Where the identity of an intestate heir is genuinely uncertain, the executor may need to obtain a court order or seek direction from the Master before proceeding with distribution.

Can a Landlord Increase Rent at Any Time? Understanding Rental Regulations in South Africa

Written by kevin Cartmell on . Posted in Wills & Trusts.

In South Africa, the relationship between landlords and tenants is governed by legal frameworks that aim to ensure fair treatment and protect both parties from exploitation. One of the most frequently asked questions by tenants is whether a landlord can increase rent at any time. Understanding the legal regulations around rental increases is crucial for maintaining a fair and lawful tenancy.

This article explores when and how rent can legally be increased in South Africa, the rights of tenants, and what landlords must consider to remain compliant.

Legal Framework Governing Rental Increases

The primary legislation that governs residential leases in South Africa includes:

  • Rental Housing Act 50 of 1999: Regulates the relationship between landlords and tenants.
  • Consumer Protection Act 68 of 2008 (CPA): Applies to fixed-term leases and provides protections around contract renewals and changes.

Under these laws, rent increases must be reasonable, agreed upon in the lease, and carried out with proper notice.

When Can a Landlord Increase Rent?

Fixed-Term Lease Agreements

If a tenant has signed a fixed-term lease (e.g., for a 12-month period), the landlord cannot increase the rent during that period unless the lease specifically provides for it. The Consumer Protection Act requires landlords to give at least 20 business days’ written notice of any material changes, including rent increases, upon renewal.

Month-to-Month Leases

For leases that run on a month-to-month basis (which is often seen following the expiration of a fixed-term lease), landlords may increase the rent, but they must provide at least one calendar month’s written notice. The increase must still be reasonable and justifiable based on market conditions.

What Constitutes a “Reasonable” Increase?

While the law does not specify exact percentages, reasonable rent increases are generally considered to be in line with inflation rates or market value. For example:

  • CPI-linked increases: Tied to the Consumer Price Index.
  • Market-related adjustments: Reflecting comparable properties in the area.

An excessive or arbitrary increase can be challenged by the tenant through the Rental Housing Tribunal.

Rights and Recourse for Tenants

Tenants who believe a rental increase is unfair or who did not receive proper notice have several legal remedies:

  • Negotiate with the Landlord: Many disputes can be resolved through direct negotiation.
  • File a Complaint with the Rental Housing Tribunal: The Tribunal has the authority to mediate and issue binding rulings without the need for costly litigation.
  • Terminate the Lease: Under the CPA, tenants can cancel a lease with 20 business days’ notice, although certain penalties may apply.

Best Practices for Landlords

To remain compliant and avoid disputes, landlords should:

  1. Include clear clauses in their lease agreements about how and when rent may be increased.
  2. Provide written notice of any increase in accordance with the relevant legal timeframes.
  3. Justify increases with market data or CPI-based calculations.

Conclusion

Landlords in South Africa cannot increase rent arbitrarily or without proper notice. The law sees to it  that both parties are treated fairly and that rental adjustments are communicated clearly and justifiably. Tenants should know their rights and seek assistance when their rental increases seem unreasonable. 

For professional legal guidance on rental agreements and disputes, contact AED Attorneys today.

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

What will happen with my Cryptocurrency when I die?

Written by kevin Cartmell on . Posted in Deceased Estates Administration, Wills & Trusts.

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

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

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

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

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

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

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

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

Written by kevin Cartmell on . Posted in Deceased Estates Administration, Wills & Trusts.

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

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

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

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

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

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

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

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

Child Maintenance Will 

Written by kevin Cartmell on . Posted in Deceased Estates Administration, Wills & Trusts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What is a Probate Process? 

Written by kevin Cartmell on . Posted in Deceased Estates Administration, Wills & Trusts.

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.

Letter of Instruction in Estate Planning: What It Is & Why You Need It 

Written by kevin Cartmell on . Posted in Deceased Estates Administration, Wills & Trusts.

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.

Unborn Child

Written by Design on . Posted in Wills & Trusts.

Will Your Unborn Child Be Covered In Terms Of Your Will?

Thinking about the future well-being of your children and grandchildren once you are gone, can be frightening. To give you peace of mind, it is important to ensure that your children and/or grandchildren are protected and provided for in a last will and testament.  Luckily most people understand this, but it is not always clear what happens in the case of unborn children.  Are they eligible? What is the position if there is no will or testament?

To be or not to be? Baby that is the question

Since the Covid-19 pandemic began, many South Africans have become even more aware of their own mortality. As a result, they had to make serious decisions about their future and rethink their children’s well-being and future. Many have set out to have a last will and a written will. However the question has arose regarding the inheritance for an unborn child, if your wife was pregnant with your child, or your daughter was pregnant with your grandchild, should you die before the baby is born.

The law regulates the birth, civil status and death of a natural person. It sets out the requirements and qualifications of legal personhood or subjectivity to the related rights and obligations. According to the law, a child’s legal identity only begins at birth. The problem is that, when strictly applying this concept, the baby would have “no rights, duties or abilities” before birth. The good news is that, fortunately, the law allows for the protection of unborn children by means of specific provisions, as briefly summarised below.

Nasciturus Fiction

Nasciturus Fiction is a common law doctrine whereby a child conceived before the death of the deceased is deemed to have “acquired rights” from the moment of conception. Despite unborn children not being considered legal entities, this legal principle allows the child to become a legal entity if it was conceived before the death of the testator and then born and being alive to inherit the legal personality.

Testate/ Intestate Succession

Similar to Nasciturus Fiction, the unborn child can acquire inheritance rights by means of testamentary succession, whether the testator leaves a will or not, provided that the child is born alive of course.

Conclusion

In summary, the unborn child can inherit if the principles of Nasturus Fiction are applied or in terms of testamentary succession, if the legal requirements are met. Therefore, when considering the future protection of your unborn child or grandchild under South African inheritance law, it is important to be aware of your rights, the rights of the unborn child and what the law requires. To make sure that everything is clear and in place before you die, it will be best to consult a legal professional. Should a dispute arise after your death, the family should obtain the input of a legal professional before initiating a lawsuit or responding to a lawsuit on their own, in the best interest of the child.

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.

Burial vs Cremation vs Aquamation

Written by Design on . Posted in Wills & Trusts.

Burial, Cremation and Aquamation – The Difference Explained

What are the options of dealing with end-of-life arrangements? What is the difference between burial and cremation? How should one make a decision when faced with these choices? In this article, we look at the pros and cons of each option and what they mean in terms of practice.

Burial vs. Cremation vs. Aquamation: What are your funeral options?

Funeral ceremonies, while they may be getting simpler these days, are still an important part of our culture. They represent the last time we will see the person who has died and identify them to their loved ones. There are many ways to celebrate a funeral, from traditional funerals with a religious service and burial, to cremation which is becoming increasingly popular.

Burial is the traditional way of disposing of a body after death. A funeral service is held and the body is buried in a grave cavity or in a coffin.

Cremation is the process of burning a body. The bones, ashes and any other remains are burned inside an oven at extremely high temperatures. The result is an incinerated skeleton that can be scattered in a special place according to the wishes of the deceased.

Aquamation is a water-mediated process that flushes away unwanted bodily fluids, including fat and everything else except bone and teeth.

Both cremation and aquamation are great options for those who want to avoid traditional funerals. However, they both come with their own unique set of benefits and drawbacks. Aquamation is more environmentally friendly than cremation, as it doesn’t produce any pollution. However, it’s not as fast as cremation, so it may not be a perfect choice for those who want some sort of ceremony with their passing. Cremation is not as eco-friendly as aquamation, but it also generates less pollution than an equivalent amount of in-ground burial.

Differences between a burial and cremation

Traditional funeral ceremonies involve burying the deceased beneath the ground. This burial method has been around for centuries and is still used across the world. It has many advantages, such as being able to interact with the deceased after their death and ensuring that they are properly buried.

One potential downside to traditional burials is that it can be difficult to find a place for everyone. Burial plots are often limited and expensive, putting them out of reach for many people.

Cremation is becoming an increasingly popular funeral option. With cremation, all combustible material is burned away leaving only the skeletal remains.  There are many reasons why people choose cremation over burial. Cremation is more affordable than burial, and it does not require land or a cemetery. It is also more environmentally friendly than a traditional burial.  Ashes are placed in an urn or urn-like container and disposed of in a respectful manner, such as scattering them over water or plants, instead of being buried.

What is aquamation exactly?

Aquamation is gaining in popularity as people seek to simplify their funerals and cut costs. Aquamation involves temporarily preserving the body using a process called hydrolysis which dissolves the body’s tissues into water and salt. After the remains have been dissolved, they are then placed in an embalming fluid that re-hydrates the tissues and replaces lost fluids. Aquamation offers many benefits over traditional funerals, including the ability to retain the body indefinitely in a private setting, the ability to have a relatively simple ceremony without religious obligation, and the potential to reduce costs.

The pro’s and con’s

Traditional funerals are typically time-consuming and expensive. This is because many traditional funeral rites require a large casket, burial shroud or coffin, and often involve elaborate ceremonies with mourning relatives and friends.

Some of the benefits of a traditional burial include:

-Burials are more traditional and often involve more religious ceremonies than cremation or aquamations, often giving mourning family members a stronger sense of a final fitting tribute to their loved ones.

-Burials typically take longer than cremations or aquamations, which may give family members time to reflect on their loved one’s life.

-Grave sites are typically final resting places for loved ones, which can be comforting for some families.

Cremation and aquamation are becoming more popular as people seek to reduce funeral expenses. As these options do not require any burial or mourning rituals, it can be a cost-effective and simpler choice for some families.

Planning your loved one’s final farewell

There are a few key things to keep in mind when planning a funeral or memorial service. Here are some suggestions to help make the process easier and more meaningful for everyone involved.

– First, think about what you want your final goodbye to be. Is it a traditional funeral with a wake and funeral service followed by burial or cremation? Or are you looking for something less conventional, like memorial urns that can be used at any time of year?

– Next, consider who will officiate your service. A priest or minister can provide solemn religious readings and prayers, while an Officer of the Court or other government official may offer more secular readings and condolences.

– Make sure there is enough food and drink available, especially if there are children in attendance. A memorial service is a somber event, but it’s also important to remember that everyone is entitled to have their personal farewell ceremony.

– Finally, be sure to select symbols that represent you and your loved ones to put on display during the service. These might include photographs, mementos from your life together, or objects that represent your favorite memories.

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.

Not formally emigrated?  How does it affect your inheritance?

Written by Design on . Posted in Deceased Estates Administration, Wills & Trusts.

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.