Wills and Trusts - South Africa & International structuring

For the first time in history, entrepreneurs and many business owners (who do not fall into the “Essential Services” category) have had to temporarily cease business operations and many are taking this opportunity to innovate and develop new businesses, business lines and technologies.

This is also the time when some people are taking stock of their own personal financial circumstances, asset protection and long-term estate planning goals.

Accordingly, this is be an ideal juncture to take the time to set up Trusts and similar vehicles to hold personal assets (as an asset protection strategy) or to hold shares in new ventures or companies to be formed and most importantly, to ensure that one has an up to date Will following any changes in your personal circumstances such as a marriage, birth of children, a divorce, et cetera.

Wills in South Africa

Why you should have a Will?

In South Africa if you fail to leave a validly executed Will, the assets in your estate will devolve in accordance with the Intestate Succession Act of 1987. Should you have any minor children as beneficiaries, their inheritance would go to the Guardian’s Fund so a valid Will is vital to distribute the estate and to appoint a legal guardian/s for minor children after death. Dying Intestate will cause significant delays to the estate administration process especially should no Executor be appointed. The Master's appointment of an Executor may take months and families may be left without income or direction on financial matters.

Freedom of testation implies that a Testator/Testatrix may revoke or change their Will at any time before their death. Any amendments to a Will include any deletions, additions and alterations and require the same formalities of drafting a Will.

Wills afford the Testator/Testatrix ample opportunity to stipulate specific instructions on how to distribute assets and income and also a number of other family arrangements.

Inter vivos Trusts (i.e. a Trust established during one’s lifetime)

During the lockdown it’s not possible to lodge documents at the Masters’ Office but it is a good time to have the Trust Deed and ancillary documents drafted to suit your requirements, to hold any necessary meetings to amend current Deeds or pass resolutions as required. There may be assets to transfer to the Trust, loan documents to be drafted etc.

Trusts are very useful vehicles for estate planning and asset protection purposes. One essential feature is that while a deceased’s person assets are frozen for several months while the estate is wound up, a Trust can continue to operate indefinitely.

Testamentary Trust

A Will can make provision for a Testamentary Trust to be established for the benefit of any person upon the Testator’s death. There are many uses for a Testamentary Trust, in particular for the benefit of minor children.

International Trusts & Wills

We can assist in the establishment of international trust, companies, foundations, companies other vehicles in a variety of international vehicles for estate planning, asset protection and general commercial purposes. Should you have assets in various countries and require an international will, we can also make introductions.

Tax Planning

Note the taxation elements in relation to Trusts and Wills need to be very carefully considered at the time of drafting.

This may be an ideal time to consider:

Whether some of the Covid 19 tax measures may apply to your business;
Tax structuring, including debt restructuring and its resultant tax deductions, group reorganisation and asset financing;
Offshore tax planning, including an offshore trading structure, an offshore asset holding structure, taking additional cash offshore
Obtaining good asset management advice for investment portfolios.

Our Team

Wills and Trusts in South Africa and internationally