Assets which are owned by a Trust do not form part of the personal estate of the Trustees or the Beneficiaries and are therefore protected from creditors. A Trust can continue for multiple generations and is not affected by the death of the Trustee or Beneficiary, which mitigates the payment of estate duty. A Trust’s income can be taxed in the hands of either the Trust or the Beneficiaries, which can be a valuable tax planning tool. Trusts offer great flexibility for the management of a family’s assets and can take into account changes in a family’s financial and other circumstances over a length of time.
This will depend on each couple’s circumstances. If you do not enter into an antenuptial contract before you get married, your marriage will automatically be in community of property and there will be no distinction between your property and that of your spouse, which will all form part of a joint estate. Should you and your spouse wish to retain your financial independence during your marriage and protect your assets against each other’s creditors, you will need to enter into an antenuptial contact, which must be signed before your marriage and be registered at the Deeds Office within 3 months of signature.
If you and your spouse enter into an antenuptial contract, you may elect whether or not the accrual system will apply to your marriage. If the accrual system is included, the amount by which each spouse’s assets increase after the date of marriage is split if the marriage is dissolved through death or divorce, in such a way that both parties share equally in the growth of each other’s assets during the subsistence of the marriage.
For properties acquired after 1 October 2001, to calculate your net capital gain, deduct the original price that you paid for the property from the selling price. You can also deduct the costs incurred while owning the property, such as transfer duty and attorney’s fees, the cost of any renovations and improvements and estate agent’s commission. If the property is your primary residence, the first R2-million of your gain is exempt from CGT. Thereafter, 40% of the gain, less an annual exclusion of R40,000, will be added to your taxable income for the year and be subject to your marginal rate of income tax.
As the Seller, you have the right to appoint a transferring Conveyancer of your choice. It is the Conveyancer’s responsibility to ensure that your property transfer is conducted as smoothly as possible and that transfer is passed to the Purchaser as close as possible to the scheduled transfer date. The transferring Conveyancer will communicate with the attorneys who are attending to the registration of the Purchaser’s bond and, if applicable, with the attorneys who are attending to the cancellation of your existing bond to ensure that registration takes place simultaneously at the Deeds Office. By drafting and signing the transfer documents, the Conveyancer accepts responsibility that the documents are all correct.
While the Purchaser is liable for the Conveyancer’s fees for attending to the transfer, the Seller will pay certain of the costs relating to the sale of the property, including the estate agent’s commission, the bond cancellation costs (if there is a bond over the property) and the costs of the electrical compliance certificate and any other relevant compliance certificates (e.g. gas, borehole etc). The Seller will also be required to pay the rates a few months in advance to obtain a Rates Clearance Certificate from the Municipality and will be refunded the pro rata amounts after the transfer is registered. If it is a sectional title property, the Seller will have to pay the pro rata levies up until the date of registration in order to obtain a Clearance Certificate from the Body Corporate or HOA.
Your Executor is appointed under your Will to carry out the terms of the Will and to administer your estate and distribute your assets to your Beneficiaries in accordance with your wishes. A Trustee may be appointed either in your Will to hold assets in a Testamentary Trust for the benefit of your beneficiaries after your estate is wound up, for example in the case of a Beneficiary who is a minor child, or under a living Trust which you have created during your lifetime. The role of a Trustee is always to hold and administer assets for the benefit of someone else for a specified period of time or for a designated Beneficiary’s lifetime.
You need a Will in order to ensure that your assets are distributed to the persons of your own choice, to appoint your Executors, Trustees and Guardians of your children and to take advantage of strategies to minimise or avoid estate duty and other taxes. Wills are not just for wealthy people - everyone should have a Will that accurately reflects their wishes regarding the awarding and distribution of their assets.
In most cases, in the absence of a nominated Beneficiary, your life insurance will pass to your estate and will be distributed as provided in your Will. In certain cases, your policy will automatically be distributed to your legal dependents, regardless of the terms of your Will. It is therefore important for your Beneficiary nominations to be kept up to date and to be consistent with your overall estate plan.
A Curator is appointed by the High Court to manage and protect the interests of persons who are unable to manage their own affairs. A person may be placed under curatorship because they are mentally ill, have dementia, are physically disabled or because they have been declared a prodigal. Such an application is usually brought to the Court by a family member, loved one or caregiver and must be supported by medical and psychiatric evidence. A Curator is in a position of trust and must always act in the best interests of the person who has been placed under curatorship.
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