WHAT IS A DECEASED ESTATE?

A deceased estate refers to the money and/or property that an individual leaves behind when he/she passes on. An estate must then be administered and distributed in terms of the deceased’s Will or the Intestate Succession Act. An executor of the estate is nominated in the Will and then appointed by the Master of the High Court. If there is no Will in place, we can also help you. The process of estate administration is often lengthy and complex because all debtors, creditors and beneficiaries must be established and reflected in the estate accounts which must be approved by the Master of the High Court.

The estate of a deceased person must be reported to the Master of the High Court within 14 days of the date of death. Any person that has control or possession of any property or a will of the deceased, can report the death by lodging a completed death notice with the Master. An executor of the estate is normally nominated in the will to do this as well as carry out the directives as set out in the will.

Death of a loved one, family member or a friend is a very painful, emotional and stressful process that drains one’s strength and drive to move on with life. The after-burial process is even more stressful. Allow us to take the burden off your shoulder, while you mourn and deal with your loss. We are specialists in the administration of deceased estates. We will help you through this difficult time by lessening the burden of dealing with the legal process. Our specialist estate administrators will be in constant communication with you to ensure a smooth transaction from start to finish.

We can assist you in administering a deceased estate by:

• Meeting with family members and beneficiaries to collect the necessary documents
• Submitting all necessary documents to the Master of the High Court
• Determining claims against or in favour of the estate
• Determining the value of the assets in the estate
• Bail applications including after-hours service
• Completing and submitting an income tax return
• Making sure that all debts are paid and assets are distributed

Executor's fees are set by regulation:

• Executor's remuneration: 3.5% calculated on the gross value of assets as at death
• Income collection fee: 6% calculated on all post-death revenue

BAIL APPLICATIONS

Police Bail

Police Bail enables an arrested person to apply for bail at the police station before the expiration of 48 hours from the time of arrest and is applicable before the accused’s first appearance in court. This type of bail may be granted by any police official of the rank of inspector or higher and is generally applicable in relation to minor offences theft to the value of less than R2 500.00 and common assault. Police bail does not apply to serious common-law and statutory offences as listed, for example, in Part II & III of Schedule 2 to the CPA i.e. treason, sedition, murder, rape, kidnapping, robbery, fraud, drug related offences.

Police bail is set at a monetary value payable in cash only. It is important to note that the police must grant the arrested person a reasonable opportunity to communicate with a legal representative, friend or family member in order to obtain the amount fixed as police bail.

Prosecutor Bail

Prosecutor bail or prosecutorial bail, like police bail, it can be applied for prior to the arrested person making their first appearance in court. A prosecutor, under the authorisation of the Director of Public Prosecutions, may release arrested persons on bail after consultation with the investigating officer. Prosecutor bail is mainly applicable to more serious offences as listed in Schedule 7 (i.e. public violence, culpable homicide, arson, bestiality or robbery where amount involved does not exceed R20 000.00).

Bail applications in court

An arrested person can apply for bail upon their first appearance or at any time before conviction, if the interests of justice so permit. The court shall, of its own accord, enquire from arrested persons if they wish for bail to be considered if the issue is not raised by the prosecution or the arrested person at their first court appearance.

In terms of the CPA, when an arrested person is charged with more serious offences (i.e. schedule 5 and 6 offences include offences of theft and fraud where the value is in excess of R500 000.00, murder, rape and robbery etc), after hours bail cannot be applied for and bail will only be decided upon when the arrested person appears in court. Additionally, if the individual has been previously arrested for an offence and the arrested person has a pending charge against them, the arrested person will be required to bring a formal bail application in court.

The interests of justice will most likely favour the arrested persons release on bail if the following circumstances do not exist: There is likelihood that if released, the arrested person will

• Endanger the safety of the public or any particular person or commit a schedule 1 offence
• Attempt to evade trial
• Attempt to influence or intimidate witnesses or conceal or destroy evidence
• Undermine or jeopardise the objectives or proper functioning of the criminal justice system including the bail system
• Bail applications including after-hours service
• Disturb public order or undermine public peace or security

If an individual is charged with an offence listed in Schedule 6, the bail application must set out reasons as to why granting the bail would be in the interests of justice, as well as establishing that exceptional circumstances of the accused warrant the bail being granted. This in turn places a secondary obligation on the accused in terms of a schedule 6 offence.

Uninformed people remain at a risk of being arrested and detained, we encourage people to be legally informed and familiarise themselves with these bails. We offer bail services even after hours, contact us today.

MATRIMONIAL PROPERTY REGIME

There are three matrimonial regimes governing marriages under our South African law. It is extremely important for couples to understand the implications of each regime prior to entering into a marriage, so as to avoid severe ramifications in the unfortunate event of divorce, protecting themselves and their assets. In South Africa couples may choose to marry in community of property or out of community of property with or without the accrual system.

Part 1: Marriage in Community of Property

In the absence of an ante nuptial contract, which must be signed before the date of marriage, a couple will be married in community of property. There is only one joint estate. Both spouses have equal powers with regards to the disposal of assets of the joint estate, the contracting of debts which lie against the joint estate and the management of the joint estate.

One of the greatest disadvantages of this marital regime is that the couple remains jointly liable for each other’s debts, including debts incurred before the marriage. If one spouse is unable to pay his/her debts, his/her creditors have a claim to the joint estate which can lead to both spouses being declared insolvent. The couple also share a credit record; one has to ensure that his/her partner takes care of his or her debts because his/her reckless financial behaviour can negatively impact the other spouse’s creditworthiness.

When dealing with the joint estate, one must bear in mind that there are certain instances which requires spousal consent, such as selling joint property, applying for new credit or withdrawing money from the joint account.

Should the spouses decide to dissolve the marriage through divorce, the joint estate must be divided equally between the spouses. In other instances, an equal division of the estate may not be fair especially where one spouse contributed more to the growth of the joint estate than the other. However, in certain circumstances, the courts will grant a forfeiture of assets where it finds that one spouse stands to benefit unduly from the division of asset

Part 2: Marriage out of community of property

In order to marry out of community of property, a couple needs to enter into an ante-nuptial contract (ANC) before getting married. In terms of this contract, community of property and profit and loss are excluded. This means that there is no joining of estates and each spouse keeps his/her estate separate. However, the spouses can choose to either include or exclude the accrual system from their ANC.

A. Marriage out of community of property with the accrual system

All marriages that are entered into out of community of property are deemed to be with the accrual system. In terms of the accrual system, each spouse retains control over his/her separate estate during the course of the marriage but can share equally in the growth of each other’s estate during the marriage. Simply put, the accrual system aims to ensure that both spouses in a marriage gain a fair share of the estate once the marriage comes to an end. The term ‘accrual’ means the net increase in value of a spouse’s estate since the date of marriage.

In terms of the accrual, the net value of each spouse’s estate is declared at the beginning of the marriage. The commencement value is then recorded in the ANC. Everything that you owned prior to marriage remains yours, but everything that you build together during the subsistence of the marriage should be shared equally. It is important to bear in mind that each spouse retains a separate estate during the course of their marriage, and the right to share in the accrual can only be exercised when the marriage is dissolved.

In terms of the accrual, spouses are generally not liable for each other’s debts. All that they share is their net assets. Thus, if one spouse becomes insolvent, the other spouse is protected against creditors. This form of marital property regime is by far the most equitable, especially where one spouse chooses to stay at home or put their career on hold while raising children or caring for extended family.

The net value of each spouse’s commencement value at the date of marriage is deducted from the net value of each estate at the end of the marriage. If, for example, the husband’s estate has grown more than the wife’s estate, the wife has the right to claim up to 50% of the value by which the husband’s estate exceeds the growth in her estate.

B. Marriage out of community of property without the accrual system

In this system, each spouse keeps a separate estate which in essence means ‘what’s mine is mine and what’s yours is yours’. Whatever assets and liabilities they individually had before the marriage continue to form part of their separate estates. In addition, assets and liabilities acquired by each spouse during the marriage will remain in their separate estates. In other words, each partner retains absolute control and independence over their separate estate.

A distinct advantage of this marital property regime is that each spouse retains complete control over her assets and liabilities. In general, one spouse cannot be held liable for the debts of the other spouse. This means that if a husband is declared insolvent, his creditors will not be able to touch the estate of the solvent wife.

On the other hand, this type of marital property regime can have devastating financial consequences for a stay-at-home-spouse. Should the marriage come to an end, a stay-at-home-parent who was unable to grow his/her own estate in terms of asset value would have no claim to their spouse’s estate? The fact that he/she would have contributed to the marriage by raising the children, running the home and supporting their spouse’s career is not taken into account.

In respect of marriages after 1 November 1984, each spouse retains their separate estate in the event of divorce. This means that each spouse keeps his/her own estate, plus all the growth in their separate estates that occurred during the marriage, less any losses.