Author: Philene Spargo

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The conundrum of a lifetime: Do I need one Will, or two? Part 3

This final article in our three-part series will explore the importance of estate planning, the complexities of having children, joint offshore bank and professional support required for the ultimate benefits of your loved ones.

In our first article, we dealt with the importance of understanding that different countries have different legal rules applicable to estates, inheritance and family law, the benefits of having one worldwide Will and the fact that there is no one-size-fits-all approach to decide whether a worldwide Will is appropriate for your unique circumstances.

In the second article of our three-part series, we unpacked some considerations around having multiple Wills governing various assets in different countries and the importance of going through a thorough estate planning exercise with your financial planner and fiduciary advisor regularly when you have multiple Wills in various jurisdictions.

The importance of proper estate planning

Your local South African estate planning should align with your foreign estate planning. A thorough cross-jurisdictional estate planning exercise will guide whether one Will, or multiple Wills, are more appropriate for your circumstances. For persons permanently resident in SA, South African estate duty and capital gains tax are payable in light of the worldwide assets forming part of your estate. Remember, a separate Will for foreign assets does not negate the legal obligation on your executor to report your offshore assets to SARS for estate duty purposes. Estate duty applies to your total worldwide estate, regardless of how many Wills you have.

There is some reprieve from taxes on death, though exemptions apply to assets left to your spouse and registered charities. While every South African’s first R3,5 million of their estate is also tax-exempt, estate duty is currently applied at 20% of the total value of the dutiable estate up to R30 million, and 25% of the value of the estate above R30 million.

A further tax concession for your offshore assets is given if a double taxation treaty exists between SA and an offshore jurisdiction in which you own assets at the date of your death. Inheritance tax across jurisdictions may be reduced depending on the tax already paid in SA.

Complexities of having children

An important consideration for parents is what would happen to your children when you pass away. Different countries have different rules that apply to the care of children and the age of adulthood. Local trusts for children can be helpful estate planning tools in South Africa, but this does not necessarily hold true worldwide. Offshore trusts may seem attractive but will involve their own costs, administrative, legal and cross-border requirements. Complexities also arise when parents wish to appoint guardians abroad for their children, and specialist advice should be sought in these instances.

Joint offshore bank accounts

The need for a separate Will can sometimes be circumvented by opening a joint bank account with your spouse as a co-account holder in some offshore jurisdictions. On the first spouse’s death, the surviving spouse becomes the only surviving account owner. As a result, the challenges and delays of dealing with joint offshore assets in an estate are reduced.

Unfortunately, offshore bank accounts held jointly with your children remain problematic in an estate since these accounts do not qualify for any spousal concessions. We recommend obtaining specialist advice to ensure that you do not inadvertently trigger donations tax or contravene exchange control regulations and that your Will properly caters for all joint assets.

Proceed with professional support for the ultimate benefit of your loved ones

Losing someone you love is never easy. However, through proper planning and sound holistic fiduciary and financial advice, your family’s transition in this time can be eased.

Suppose you already have more than one Will in more than one country. In that case, it is vital to check that your Wills do not conflict with, revoke or override one another, that your Wills align with your tax and estate planning, that your (and your beneficiaries’) nationality, domicile and place of residence have been taken into account and that differences in language, culture, and legal principles are catered for.

Although not all fiduciary practitioners specialise in international estate planning, many members of the Fiduciary Institute of Southern Africa do have these skills. The team at Chartered Legacy and Trust are FISA accredited and have the insight to care for your fiduciary needs so that you can continue to grow your wealth and care for your family.

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The conundrum of a lifetime: Do I need one Will, or two? Part 2

You might recall reading our article in the December 2020 Beacon introducing this three-part series reviewing the use of one or two Wills in your estate plan. In our first article, we dealt with the importance of understanding that different countries have different legal rules applicable to estates, inheritance and family law, the benefits of having one worldwide Will and the fact that there is no one-size-fits-all approach to decide whether a worldwide Will is appropriate for your unique circumstances.

In the second of our three-part series, we will unpack some considerations around having multiple Wills governing various assets in different countries .

Some people believe that having a Will drafted in each jurisdiction will prevent all problems. This is not necessarily the case and we recommend that you seek bespoke legal advice to determine whether having more than one Will is right for you. 

There are however some factors that may necessitate a foreign or offshore Will (or having a few of these) in addition to having a local Will for your South African assets. These considerations include: the type of assets you own, which legal systems apply to your foreign assets, the ability of your estate to have cash on hand to settle taxes and costs due as a result of your death (and in which jurisdiction these need to be paid), the needs and location of your beneficiaries (such as dealing with children or persons needing special care) and some practical considerations about the winding-up procedure.

Some clients choose to have an offshore Will to facilitate a more efficient process of administration since the local and offshore estates can be dealt with separately and simultaneously. This is beneficial. However, caution still should be exercised as the two Wills need to be carefully drafted to operate alongside one another.

Generally speaking, if you own assets in a country with forced heirship rules, it is good to consider having a separate foreign Will governing your assets in that country. Since each country’s laws are unique (and can have far-reaching implications), we recommend that you consult with a local expert where this is the case.

A foreign Will is also normally advisable if you own immovable property (like a house, farm, flat or stand) overseas, since this must be transferred according to the laws of that country and all foreign legal formalities must be adhered to. Although a foreign Will may not be required by law, it may sometimes be practically advantageous.

Having multiple Wills may allow for the South African and foreign estates to be wound up separately and simultaneously. This can be helpful, especially in countries that require estates to be wound up within a certain amount of time. Where a foreign language is spoken, having a Will in the language of that country could also be beneficial to ensure smooth administration of the assets in that country and avoid costs and delays incumbent on translation of legal documents.

Then again, drafting an offshore Will can be expensive upfront, which is sometimes a deterrent. It also means that you need to choose an executor in each legal jurisdiction where you have a Will.

Care must be taken when drafting Wills in various jurisdictions to ensure that the documents do not revoke one another. The various legal professionals from each jurisdiction must collaborate to ensure that your Wills work in cohesion where multiple Wills are necessitated. Distribution of assets, costs and estate planning goals must be carefully planned to ensure a cohesive outcome for your family.

In the final article in the series we will explore the importance of proper estate planning, the complexities of having children and joint offshore bank accounts with regards to your Will.

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The conundrum of a lifetime: Do I need one Will, or two?

One thing that 2020 has taught us is that we live in the global era. Increasingly, notwithstanding the various lockdowns imposed this year around the world, South Africans work, live, invest in, emigrate and travel to various countries.

As a result of our participation in the global economy, many of our clients or their family members and friends own
offshore assets, including bank accounts, investments, shares in private companies, vehicles, and fixed property to name a few.

While you’re focused on living your life and growing your wealth, it really does also pay to consider estate planning when you consider acquiring assets in foreign jurisdictions. Every country has its own legal framework governing property, investments, marriage, children, tax, Wills and succession. Many people forget to consider what will happen to their assets on death – and assets around the world bring some complications of their own to your estate planning! In this two-part series, we will unpack some considerations which affect whether you need one worldwide Will or multiple Wills to govern your offshore and local assets.

Fact: there is no one-size-fits-all answer

Whether your assets and estate require one Will or two is often a matter of professional opinion, convenience and practicality. For this reason, when you have assets in multiple legal jurisdictions, it is best to seek advice from your fiduciary legal specialist based on your unique circumstances and needs.

Different countries have different legal rules

Different countries have differing processes for winding up deceased estates and allow different levels of freedom to choose who inherits your assets. A Will drafted in South Africa is not necessarily applicable, appropriate or enforceable in other countries. Countries such as Spain, France, Mauritius and Portugal have a system of forced heirship (a set of legal rules which limit a person’s freedom to distribute his or her estate). Countries where Shariah law prevails present their own unique complications and forced heirship rules. Assets located in such countries might be subject to these forced heirship rules, so it is important for the person who drafts your Will to know about all your assets – and to get the correct information about all the legal jurisdictions in which they are held.

Considerations in favour of one worldwide Will

Normally, your South African Will covers your worldwide assets. It is always better to mention this expressly in your Will to avoid any doubt, but this will be the default position even if it is not explicitly set out in your Will.

One worldwide Will allows a consolidated and centralised approach to the administration of your estate after you pass away. You appoint one executor in your Will, and that person will be responsible for dealing with your assets wherever they may be situated in the world. This will be a beneficial approach if you do not have many offshore assets, if all your offshore assets are liquid (i.e. not immovable property), or where either your local or offshore estate may have some liquidity challenges that need to be managed.

Caution should be exercised in making use of only one Will; however, since not all countries’ legal systems are prepared to recognise a South African Will. Cross-jurisdictional language differences could preset major challenges and some assets may not be dealt with by your local executor, resulting in your executor needing to appoint an agent in a foreign jurisdiction to deal with those assets. This would naturally incur additional costs which your estate would be liable for.

As you can see, there are many factors affecting the practicality of one worldwide Will, and caution should be exercised before using this estate planning strategy. Please keep a lookout for our next newsletter, dealing with the use of multiple Wills in your estate planning.

If you need an additional Will please contact Philene@charteredlegacy.co.za or your RetiremeantTM Specialist.

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An Independent Trustee: why does my trust need one?

The ‘Independent Trustee’ has become a requirement for certain types of trusts in South Africa. Philene Spargo discusses important aspects of independent trustees that those involved in a trust should know.

In a trust, the trustees contractually agree to administer the trust assets for the benefit of the trust beneficiaries. Historically in South Africa, many beneficiaries and trustees have treated trust assets as their personal assets. This is undesirable as, once a trust acquires assets, those assets can no longer be used at the whim of the former owner without adverse legal consequences.

The role of trustee

A trustee, when appointed, accepts a legal duty of good faith to administer trust assets for the benefit of the trust beneficiaries. This means that trustees must exercise care, prudence, objectivity and sound reason in their administration of trust assets. However, this does not always happen.

The need for an independent trustee

The requirement for an independent trustee to be appointed to certain trusts in South Africa arose from the 2005 decision of the Supreme Court of Appeal in Land and Agricultural Bank of South Africa v Parker and Others. The court ruled that there was no proper separation of control and enjoyment of the trust assets. Simply put, the trustees had improperly administered the trust.

When is an independent trustee required?

Because of the Parker case, the Master of the High Court issued a Directive in March 2017: all South African trusts that meet certain criteria require the appointment of an independent trustee alongside the other (interrelated and potentially conflicted) trustees. The criteria are:

  • The trustees have the power to contract with independent third parties
  • The trustees are all beneficiaries, and
  • The beneficiaries are all related to one another.

So, most trusts in South Africa require an independent trustee to be appointed to act independently of the other trustees to reassure the Master that the trust is being administered legally.

Characteristics of an independent trustee

While the independent trustee does not have to be a professional person, he/she must:

  • be completely independent of the normal contracting parties of the trust, and not a family relation of an existing trustee, proposed trustee, beneficiary or founder in a wide sense
  • not be a beneficiary of the trust
  • ensure the trust functions properly and that the provisions of the trust deed are observed
  • exercise objectivity and be competent to scrutinise the conduct of the other trustees who are not independent
  • be knowledgeable about the law applicable to trusts
  • not be disqualified to act as trustee by the Trust Property Control Act
  • have knowledge and experience of the business field in which the trust operates
  • be aware that failure to observe his/her duties may risk legal action
  • understand the legal duties attached to being an independent trustee, and
  • always maintain his/her independence by not allowing the other parties to exercise undue influence over trustee decisions.

Looking forward

While there will be additional costs by having a professional, independent trustee involved in administration of the trust, the benefits of objectivity and compliance are significant.

Ideally, an independent trustee – either a natural person or a corporate – should specialise in fiduciary law. If you would like assistance with the independent trustee role for a trust with which you are involved, or have questions regarding trusts, the Chartered Legacy and Trust team can help you to navigate the difficult landscape of trust law and journey alongside you as you protect and preserve your family’s legacy.

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Changing circumstances? Change Your Will

Like most things in life, sometimes your Will needs to change.

Your Will details how you would like your assets to be distributed after you pass away. In part, it embodies how you would like to be remembered by those you love when you are gone.

Most of life’s significant “changes” may trigger a Will revision: birth of a child, death of a family member, divorce, marriage, re-marriage and relocation of you or your beneficiaries (within South Africa or abroad).
The executor nominated in your Will may also need to change – for example, if the nominated person moves offshore – or you may have a change of heart about your nominated beneficiaries. Any changes to your asset structures (for instance, as a result of retirement) can mean a review of your Will to ensure that it still fulfils your wishes. Here are details on some aspects:

Children

When a person under the age of 18 stands to inherit, we generally recommend that a trust be used to safeguard the inheritance for the child and prevent it from being administered by the Guardian’s Fund. When a child is to inherit, your Will may need to include provisions to create a trust through your Will if a registered family trust does not already exist. Parents should nominate guardians for their children in their Wills. When your children reach age 18, guardianship falls away and you can remove this provision from your Will.

Divorce

After a divorce, the law gives a “grace period” within which to update your Will. If you pass away within three months of the divorce, the law assumes that you were still going to change your Will and will treat your ex-spouse as though they passed away before you. However, if you have not updated your Will in the three months following your divorce, this protection lapses as the law assumes that you did not want to change your Will. As a result, your ex-spouse may inherit from you according to the provisions of your latest Will.

Offshore assets

Another reason to revise your Will may be if you acquire offshore assets. Most movable assets – cash, investments, vehicles, personal and household effects – situated in a foreign country can be governed by your South African Will, but exercise caution with immovable property and larger investments.

Depending on the jurisdiction, you may wish to draft an offshore Will and take specialist legal tax advice for those assets, since not all countries have the freedom of testation that South Africa does and various countries have different legal rules about how to deal with your assets on death. There are also special tax concessions regarding an offshore inheritance that is never repatriated to South Africa – if you have inherited an offshore asset, ask your financial planner for details!

How to change your Will

Most frequently, the best way to update your will is to make a new one to replace the old. You can also draw a codicil to update your Will, but the original Will and original codicil must be kept together and must “talk” to each other by cross-referencing the codicil to the Will provisions. The simplest option, though, is to draw a new Will reflecting your current wishes – any outdated portions of your old Will can then also be revised.
It is never advisable to write on your Will to try to change the provisions. Handwritten wills, and handwriting on an original Will, will create problems for your beneficiaries and lead to delays in the winding up of your estate or your Will being declared invalid!

If you want to change your Will, or if you have any questions about changing your Will, the team at Chartered Legacy & Trust can guide you through the process and help you to navigate the legal labyrinth to leave a lasting legacy for your loved ones.

Johannesburg Office
Tel: +27 11 502 2800
Eastern Cape Office
Tel: +27 41 001 1026
Western Cape Office
Tel: +27 21 001 0048
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