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- If one dies without a valid will, do one's assets accrue to the State?
No, but also yes. Inheritance occurs in terms of the Intestate Succession Act, No. 81 of 1987. Your assets will be deposited in the Master of the High Court's Guardian Fund only if there is no spouse (civil union partner), descendant (a legally adopted child is also a descendant), parent or descendant of a parent or other nearest blood relation. Only if the assets have not been claimed by a legitimate heir will they be forfeited to the State after thirty years.
- Does a nominated executor hold this office during the life of the testator?
No. An executor may perform his duties only after the death of the testator and once the Master has issued a letter of executorship.
- Is a verbal promise of an inheritance valid?
Definitely not. Inheritance may occur only in terms of a valid will or in terms of the Intestate Succession Act.
- Is an inheritance a right?
No. It is a privilege. Your spouse (partner) and dependants may bring a claim for maintenance against your estate if they qualify for it and adequate provision has not been made for them, and also if they do not receive adequate benefits under your retirement funds or proceeds of policies in respect of which they are the beneficiaries.
- Are stipulations and provisions in a will restricted?
Definitely. For example, in your will you cannot invalidate acts, regulations and rules or be prescriptive about them. Nor may you make stipulations that are contrary to good morals, for example by making your son's inheritance conditional upon his divorcing his wife. You may also not divest a parent of guardianship.
- Can a will also serve as a contract or agreement?
No. They are two different documents. A contract is an agreement between two or more persons and in your will you cannot make unilateral stipulations that must be forced on other persons, for example with regard to partnerships and loans. You may refer to them in your will, but this is not enforceable and is only for information purposes.
- Is it the duty of an executor to make funeral arrangements?
No. However, if he does so it is in his personal capacity. Only funeral costs (cremation) and the cost of a gravestone (niche) are permissible claims against the estate. Other costs, for example telephone and travelling costs and the cost of refreshments, cannot be claimed unless authorised in the will.
- Do signing powers and power of attorney lapse at death?
Yes. Once he has been appointed by the Master, only the executor may, for example, withdraw funds and sign documents.
- Does interest on investments and debt cease at death?
No. Interest on your savings account and investments only ceases upon withdrawal or transfer (if transferable, such as shares and unit trusts when they continue to the benefit of the transferee). Interest on debt, such as bonds and hire-purchase agreements, ceases only when the debt has been redeemed in full (or in some cases when it is taken over by an heir). On the other hand, creditors may not charge interest if no interest was charged (or if they were not entitled to interest) prior to the death of the debtor, and they must wait for payment until the executor is able to effect payment.
- Do contracts and lawsuits lapse at death?
No, but sometimes also yes. The executor must honour contracts entered into by the deceased, for example the buying or selling of property, and leases, unless the contracts contain stipulations that the agreements will lapse in the event of death. Most lawsuits and court cases will continue, but cases such as a charge of driving under the influence will lapse automatically.
- Is it true that the longer it takes to administer an estate, the higher the executor's fee?
No. There is only one rate - different rates are not charged according to whether an estate is easy or difficult to administer.
- Does the executor summarily sell all assets?
No. He sells only what is necessary to settle claims or as stipulated in the will or at the request of an heir. Transferable assets are transferred unless there is a restriction, such as the Subdivision of Agricultural Land Act. |
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