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Important considerations for estate planning

17 Sep 2010

Sonja Frank, Suzette van Niekerk and Tenk Loubser

F.l.t.r.: Sonja Frank, Suzette van Niekerk and Tenk Loubser

Considering the validity and relevancy of one's will on a regular basis is of crucial importance. Some aspects that may warrant consideration in this regard are:

Identify the testator and his/her marital status

Testators' identity numbers and marital status should appear in their wills. A testator must also state whether he/she is married in or out of community of property, with inclusion or exclusion of accrual. The accrual claim of a surviving spouse will be treated as an estate debt and must be settled in full (or secured) before any heir may inherit assets. This may put cash flow constraints on the estate and it is thus advised that you discuss the matter with your financial advisor.

Protection of beneficiaries from creditors

A clause in a will stating that creditors may not attach the assets inherited by heirs is not enforceable against such creditors. However, the good news is that inherited property can be validly protected against the claims of a disgruntled spouse in case of a divorce. The only condition is that a properly drafted clause to this effect appears in the will.

Amendment of will

Refrain from effecting handwritten changes to an original will. Should you wish to make changes, rather draw up a new will.

Powers of executor

Ensure that your executor is granted wide powers to unwind the estate according to his/her discretion. This will speed up the estate administration process.

Signature

It is a formality requirement that the will is signed in the presence of two witnesses. These witnesses may not be beneficiaries, trustees or executors of the estate.

Handwritten wills

An heir who has written out a will in his/her handwriting for a testator/testatrix is unfit to inherit.

The use of trusts in estate planning

Never underestimate the effective use of a trust as an estate planning tool. Where there are minor children or assets with a growth potential, a trust may be the ideal vehicle to use.

For more information contact Tenk Loubser or Sonja Frank at Exceed's Stellenbosch office on tel. 021 882 8140, or Suzette van Niekerk at Exceed's Somerset-West office on tel. 021 852 0382.

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