Symbiotic relationships between Estate and Financial planners are a vital component in offering the client wealth generation and preservation solutions.
During a person's lifetime, Estate Planning is the process of arranging for the management and disposal of that person's estate at and after death. The key objective is to make the client aware of the implications of his decisions and what effect it will have on his estate as it pertains to the various forms of tax such as donations, capital gains tax and primarily estate duty.
The estate of any deceased person must be administered and distributed in terms of the deceased's will, or failing a valid will, in terms of the Intestate Succession Act, 81 of 1987. The procedure that must be followed, is prescribed by the Administration of Estates Act, 66 of 1965 (as amended).
The administration of trusts is governed by the provisions of the Trust Property Control Act no 57/1988. There are two types of trust, namely
- an inter- vivos trust created between living persons;
- a testamentary trust derives from a valid will of a deceased*
Nominating a skilled trustee, is the single most important step in your decision to form a trust, and to ensure that the Trust is managed according to current legislation and best practices and with the necessary independence that will ensure you are at arm's length from the day to day trust operations. Trustees need to stay abreast with ongoing legislative changes such as Section 7(c) of the Income Tax act, which affects loan accounts to trusts, Capital Gains Tax (CGT), Donations Tax and the deeming provisions in Trusts.
* As extracted from the Department of Justice & Constitutional Development (Master of the High Court) website.
Any person who has assets (such as fixed property) or dependents, should have a professionally drafted will. A poorly planned and drafted will could lead to litigation or impractical administration problems, such as, a cash shortfall (where assets need to be sold in order to pay debts and administration expenses) when you are no longer alive. Apart from the stress on your family it often comes with unnecessary costs.
Not having a will (dying intestate) can similarly bring hardship to your family, with the unintended beneficiaries inheriting. Second marriages, where there are children from a previous marriage, often cause discord after the death of a client. Professional estate planning advice and an expertly drafted will is vital.
Ill-conceived or thought out wills can result in added delays in the administration process and bring with it, added administration expenses which will affect the amount your beneficiaries will inherit.
We at BEXs are fully able to render this service.
The arm's length principal (ALP) is the condition or the fact that the parties to a transaction should be independent and on an equal footing. Such a transaction is known as an "arm's-length transaction."
We recommend appointing a professional independent trustee with wide ranging fiduciary experience to your trust as this will ensure that all decisions are truly independent. BEXs has the expertise to fulfill this role.
Should the original will be misplaced or lost, the costs of having a certified copy of a will accepted as the original is in the hands of the High Court and is an expensive exercise. Ensuring that your original last will and testament is safely stored and readily available for interested parties when it is needed, is the sensible thing to do.
We at BEXs have the necessary facility to store your original last will and testament.
We all know that tax is the subject of much debate, be it by the taxpayer, the fiscus, the planner or the tax consultant. The most talked about aspect of taxation is how we can legally save as much tax as possible …. The adage tax avoidance vs tax evasion comes to the fore. As a responsible fiduciary service provider, we are advocates of responsible tax avoidance schemes. We acknowledge that expertise lies within the practice of customised fiduciary solutions we are well able to handle the rigours of taxation within the fiduciary business. We are very proud of our symbiotic partnership with our financial planning colleagues to provide our clients with the best tax assistance possible, and where more expertise in this field is needed we are honoured to work with Messrs. Johns and Associates professional accountants and tax practitioners.
BEXs assists clients or the clients of our Financial Planning partners with Dispute Resolution in the Fiduciary context. During this process, we assist the client with any fiduciary dispute they may be having with a Fiduciary Practitioner as it relates to Deceased Estate or Trust Administration, in a personal matter or where they are a stakeholder in another fiduciary matter.
This entails doing a due diligence of the trust to establish that:
- The terms of the Trust are being adhered to;
- The trustees are exercising their duty of care;
- The trustees are acting in the interest of the beneficiaries;
- There is the necessary Trustee independence;
- Regulatory provisions are being adhered to;
- Taxation matters are up to date
- And many more important aspects
The trust deed must be drafted with the requisite attention to detail and must be drafted to meet the client’s needs. It is critical that the parties to the trust are clearly identified specifically as it pertains to the Trustees and beneficiaries, remembering that there could be a difference in beneficiary classes, namely Income and Capital beneficiaries. Moreover the tax consequences of forming a Trust must be carefully considered by the client. Let BEXs assist you in considering this option and in need draft the deed for you.
Trustee’s duties are arduous, time consuming and often unwittingly ignored. Unless the governance aspects of Trust administration are attended to timeously, Trustees face the risk of incurring penalties or worse still, being found incompetent to serve in that role. Bearing in mind that Trustees, why applying to be appointed, confirm to the Master of the High Court that they understand their duties and have the requisite experience to act in that role. Why not let BEXs assist you with the governance and secretarial duties, leaving the Trustees to make the strategic decisions without having to worry that the Trust records are up to date, relevant and in compliance with Trust law?
Customised Fiduciary Solutions