WILLS AND ADMINISTRATION OF DECEASED ESTATES

There are formalities and `requirements in place when drafting a will to avoid the possibility of impersonations and fraud and to ensure that is valid, binding and enforceable. If these requirements are not met, it will be invalid and not enforceable. There are also limitations. Section 2 (1)(a) of the Wills Act 7 of 1953 contains the requirements for drafting a valid  and these requirements have to be adhered to strictly, as the slightest oversight may result in an invalid will.

The will must be amended annually in order to cater for changes and ensure that the beneficiaries benefit in accordance with your wishes. Your original will and testament will be archived and kept safe and a friendly staff member will contact you annually to enquire whether you require any changes to your existing will.

If you do not have a valid testament when you die, everything that remains after all debts and administrative costs have been deducted, will be inherited through the laws of succession by your qualified beneficiaries.  All the assets in your deceased estate will be distributed by the Intestate Succession Act 81 of 1987.

Minor children need to be maintained and they would thus have a common law claim for maintenance against the will. It is highly advisable that we create a trust for your minor children which will be an annexure to your will. The trust will stipulate how your assets are to be divided amongst your children, at what age they are to receive these assets, who will act as guardians to your children in the event of single parents or simultaneous death of both parents and who will act as trustees.

Chininga Attorneys will assist you in the process of arranging and managing a deceased person’s affairs in such a manner that it optimizes their aspirations and minimize estate duty and tax donations whilst adequately protecting the testator’s assets against any unwanted creditors.

It is wise to start with estate planning as soon as possible. By starting at an early age, one can ensure that an estate plan is put into place to not only guide a testator in terms of acquisitions, but it can also be beneficial for minimizing donations tax and transfer duty.

Estate planning provides for a structure to ensure that the testator’s heirs are provided for in the best possible way, by not only taking the financial aspects into account, but also the emotional and social components thereof, such as guardianship and setting up special trusts in respect of children who have special needs.

Chininga Attorneys will identity each testator’s unique needs and ensure that an estate plan is set into place, assist you in drafting wills, estate planning, tax planning, administration of deceased estates and advise you on the best possible structure for your unique circumstances, either by utilizing a trust, short or long term insurance as well as provide you with a variety of options in terms of investments to assist your respective financial, and familial needs.

When person passes away and they have left behind any assets and money to their name, a deceased estate comes into existence. If the deceased left behind a will, their estate will be administered in accordance with the will. If the deceased died without a will, their estate will be administered in terms of the Intestate Succession Act.

Chininga Attorneys Incorporated will be involved and assist you in all processes and steps required in reporting a deceased Estate to the Master of the High Court, including the winding up and distribution of the Estate.

STEP 1:

• If the deceased executed a Will before passing their estate will be administered and Regulated by the Administration of Wills Act

• If the deceased passed away without a Will their estate will be administered Regulated by the Intestate Succession Act

STEP 2:

REPORTING THE DECEASED ESTATE

• Deceased estatesmust be reported within 14 (fourteen days) of the date of death.
• The deceased estate must be reported to the Master’s office within the jurisdiction that the deceased lived in
• The estate must be reported by the Executor of the estate.
• The Executor of an estate can appoint an agent such as a law firm to assist in the reporting of an estate.

STEP 3:

APPOINTMENT OF AN EXECUTOR

WHO CAN BE AN EXECUTOR?

• A person can appoint an executor in terms of their Will.
• Where a person dies without a Will the heirs to the estate may nominate someone to the executor of the deceased estate.
• A nomination form must be completed by the heirs of the estate.
• An attorney can be nominated to be the Executor of a deceased estate. The attorney can be nominated in terms of a will or by the heirs to a deceased estate if the deceased died without a will.
• A family member can be appointed as the Executor and be assisted by an attorney who will act on behalf of the executor as an agent

FUNCTION OF THE EXECUTOR:

• Settle the liabilities of deceased
• Open a bank account for the deceased estate
• Close the deceased bank accounts
• Collect the assets for the deceased estate
• Distribute the estate in accordance with the Will.
• Distribute in terms of the Intestate Succession Act.
• Making payments toward creditors.
• Sell or transfer the deceased’s property.

STEP 4:

Letter of Authority vs Letter of Executorship

• Deceased estate less than R250 000.00 (two hundred and fifty thousand rand) = letter of authority.

• Deceased estate to the value of R250 000.00 or more (two hundred and fifty thousand rand or more = letter of executorship

STEP 5:

REPORTING DOCUMENTS

All estates regardless of their value needs to be reported.

All estates regardless of their value are required to complete the list of reporting documents below:

1. Nomination Form;
2. Next of Kin Affidavit;
3. Acceptance of Trust as Executor;
4. Death Notice;
5. A Declaration of Marriage by the Surviving Spouse indicating how the deceased was married
6. Inventory Form; Declaration confirming that the estate has not already been reported to another Master’s office or Service Point of the Master;

STEP 6:

DOCUMENTS THAT WE REQUIRE:

• Original Death Certificate;
• Identity Document for the deceased;
• Marriage Certificate if the deceased was married;
• The Will and Codicils left by the deceased;
• Proof of a customary marriage or registration of a customary marriage
• Declaration confirming the existence of a same-sex life partnership;
• List of deceased’s assets and liabilities (creditors);
• Certified Copy of the executors identity document;
• Signed Nomination form.

STEP 7:

LETTER OF EXECUTORSHIP

For further assistance with the procedures that follow after a Letter of Executorship kindly contact our offices.

There are many risks involved in driving motor vehicles and each motor vehicle accident has its own unique set of facts and surrounding circumstances. Some of the risks involved in driving a motor vehicle are injuries to drivers, the passengers in the vehicles, pedestrians, as well as the risk of damage to the vehicles and/or belongings inside the vehicles.

In the event of an accident, claims can be instituted against the following person’s/entities, namely:

• The driver of the vehicle who was negligent and caused the accident;
• The driver’s employer if the accident was caused during the course and scope of the driver’s work duties. The latter is more specifically known as vicarious liability in South African Law;
• The driver’s private insurance (if the driver was insured).

How is negligence determined?

A person alleging negligence will have to prove that the other driver did not act reasonably in the circumstances, in that the driver should have been able to foresee the damages he/she caused and should have taken reasonable steps to prevent such damages.

Grounds for negligence include the following, namely:-

• The driver failed to keep a proper and/or an adequate and/or any lookout;
• The driver failed to exercise any and/or proper control over the vehicle driven by him/her;
• The driver failed to take into consideration the rights of other road users;
• The driver failed to apply the brakes of the vehicle driven by him/her timeously, adequately, or at all;
• The driver failed to comply with and adhere to traffic signals and/or the provisions of the Road Traffic Act;
• The driver failed to avoid a collision when by the exercise of reasonable care, he/she could and should have done so.

With regards to contributory negligence, more than one person can be found to cause a motor vehicle accident. For example, one person may be found 70% at fault and the other only 30% depending on the circumstances of the accident. The magistrate will make a finding on the apportionment of the accident when the matter proceeds to trial, alternatively, the parties themselves can try and negotiate a settlement privately between themselves.

What to do after the accident occurred?

It is important to obtain as much information and evidence as possible on the day of the accident in order to institute a claim against the negligent driver, such as:-

• Details and contact information of the drivers, passengers, and owners of the motor vehicles involved;
• Witness statements;
• Photographs of the damages to the motor vehicles as well as the surrounding area;
• Description of the motor vehicles involved;
• Report the accident at the nearest police station;

Obtain at least 3 official quotations from different panel beaters regarding the repair cost, alternatively that the motor vehicle is uneconomical to repair;