When DEATH becomes a reality. The Reality of Death and the aftermath
We at Debt Centre strive to inform our customers how to better their lifestyles and wealth, to live debt free, how to look out for pitfalls of money abusers and lenders, where to save, who not to trust, and we help to educate everyone so that they can avoid the mistakes of so many others who did not know better. Most of the issues we discuss in our blogs come from what we experience with our consumers at our office, and their related financial difficulties.
There is a very serious and concerning matter we would like to share in this week’s blog it’s about what happens to the affairs of an estate late after you or a loved one, have passed away. Death is the inevitable and definite end, a full circle of life for all living creatures on earth and a topic not everyone would like to read or talk about. Unfortunately, there are very important facts and necessary detail one needs to be aware of. Two weeks after the funeral the reality of the details of the Last and final Will must be attended too, this is where the surviving spouse, dependants and family find it difficult to take the next step. May this week’s blog help you navigate your way to ensure the Estate late is winded up and finalised in the shortest period of time.
We would like to share our experiences with you about the reality of what happens after the passing of a spouse or yourself, and to prevent unnecessary financial difficulty for those left behind while in emotional distress and mourning. Most of us have some Idea of what it all entitles, but the general ignorance to the events that will unfold after we are gone, is what cause unnecessary legal problems for the rest of the family involved.
When you pass away, your rental property must be packed up and all your belongings must be moved out, so that the landlord can lease the property again. Your surviving spouse or husband has to deal with it and make decisions on his or her own on whether to continue the lease and if affordable. So we want to touch on the aspects of your Last Will, so that you understand the importance of it, and the legality of procedures to follow that your last living wishes be respected and adhered to.
What You need to know
If you do not know what needs to be in place to make it easy for the person who you would entrust with your belongings and finances, allow us to inform you of the detail.
First and foremost, you and every family member must have an up-to-date and notarised Will and Testament drawn up, it is the most important document you and I want to have in place to state what we want to leave behind for the special people in our lives.
**If you die without a notarised Will, it means you have died “intestate.” **
When this happens, the intestacy laws of the state where you reside will determine how your property will be distributed upon your death. This includes any bank accounts, securities, real estate, and other assets you own at the time in terms of the Intestate Succession Act 81 of 1987 in South Africa. Basically the act sets out who will inherit your assets as it prioritises your spouse, children, grandchildren, parents and other relatives.
Visit a Last Will and Testament specialist or a good attorney, to help you draw up a Will of your property. Discuss the options where to keep it safe, so that it will be easy to get it in the event of your death, it’s also a good idea to leave an original copy with your appointed executor of the Estate.
You can draw up your own Will, there are templates online on the internet these days that serve as guides to help you write your own Will and Testament. It is valid and legal in South Africa as long as It meets the State’s Legal Requirements and it must be notarized. Ensure your Will is not signed by heirs, as the Will will be Null and Void.
Your Last Will and Testament
Whether you draw up your own Will or work through a professional, you need to make a list of everything in your name, or in your spouses, and it should be specified what you want to happen with all your assets when you’re gone.
In order for a Will to be valid in South Africa it must be in writing or print, as long as each page is signed, including the last page in full by the testator. The Will must also be signed by two competent witnesses. According to our law a person will qualify to be a competent witness if s/he is 14 (fourteen) years of age or older, and then be legally notarised by an official with his or her stamp recognised by the Master of the Court.
You have to appoint and executor of you affairs, the person considered most trustworthy to ensure the deceased person’s assets are divided up in terms of the wishes of the last Will and Testament. You may appoint your attorney as the legal executor if there is no one in you family you want to select. He or she must also be aware of, or in possession of the copies of all the following documents:
Life cover policy – It often happens that the beneficiaries are outdated on a death benefit life cover policy. If you have a life cover it is good to make sure your beneficiaries are listed as you intended, and the benefits are as you stipulated.
Funeral policy – It is also really important to know what provisions you have made for your burial. Your Will should also stipulate how you want your remains managed after your death. The religious leader and church, the undertaker or funeral home, detail instructions noted in your policy regarding the grave site and stone, and all the necessary detail regarding must not be overlooked.
The executor must have clear instructions in the Will what to do at the event of the deceased’s passing, his actions are crucial and legally bound as he must contact the specified doctor for a death certificate process, consult directly with the undertaker who can arrange all funeral matters and assist with the policy claim, get the ID documents certified, the Life and Funeral policy documents from the banks, notify the employer of the deceased and get the details of the relevant retirement fund and last salary to the spouse, close all bank accounts and get all the relevant documents signed and certified for the Master of the High Court. Only Original certified documents will be accepted at the Master. When the appointed executor or his appointed administrator does not fulfil their duties a complaint can be lodged at the master’s offices for investigation. The Master can then make a decision once the parties were placed on terms and they do not fulfil their duty as per the appointment by the deceased in the Will.
The Master of the High Court must be notified of the death through certain prescribed documents, all documents of the assets, property and debts, bank accounts, business and personal items lists, and a copy of the Will must be submitted. All of it will be examined for the validity before the letter of executorship can be issued.
When the executor receives the letter of executorship, he or she is obliged to place a notice in the Government Gazette and in one or more local newspapers, requesting the creditors of the deceased to notify the executor of any claims against the estate within 30 days. During this 30-day period, the executor continues to obtain valuations of fixed and movable assets in the estate, as well as particulars of the deceased’s investments.
As soon as all this information has been received, the executor determines if the estate has sufficient cash (or money in the bank) to meet its obligations. If not, the beneficiaries are consulted about a way in which they intend meeting the cash shortfall. If they are unable to do so, the executor will sell assets from the estate to cover the cash deficit. Selling of assets often leads to lengthy negotiations with beneficiaries, auctioneers and others, which can delay the administration of the estate for months.
At this stage, the executor also determines the tax position of the deceased by submitting the necessary returns to the South African Revenue Services.
Most of the creditors in my line of work have death benefits incorporated in their products, such as credit cards at the bank, personal loans, clothing accounts etc, and with the submitted death certificate and marriage documents and all other needed proof by the executor. The appointed executor or the living spouse can inform all creditors of the death and forward the death certificate and certified ID documents to ensure the insurance pays out on the products.
Compiling a Liquidation and Distribution Account can take up to six months, depending on the size and complexity of the estate. In terms of the Administration of Estates Act, the executor must submit the account within six months of the issue of the letter of executorship, unless the Master of the Court has given permission in advance for a time extension.
If the deceased’s tax was not up to date it will cause a further delay for a tax clearance certificate issued and much needed for death benefits payable to nominated beneficiaries, and it will prevent any other like pension benefit or last salary pay outs to the surviving spouse and dependents. If you were sequestrated and rehabilitated in your life, you will need a new tax number from the Receiver of Revenue, and that must be noted in your Will for the executor to use. A good idea to ensure your tax is in order with SARS every year when SARS is due. I you were sequestrated and rehabilitated ensure that you have registered a new tax number with the Receiver of Revenue, this will prevent delays after your passing.
Claiming your late husband or wife’s death benefit from their UIF and pension payout are also permitted and a legal right. The spouse must contact the employer who can assist in the process of the application that must go to home affairs and the unemployment offices, and at the payroll and HR of the employer as well.
This claim has to be done within 6 months from the date of the employee’s death, to be submitted in time for the benefit claim. Not many know that they can benefit from it and in our experience with our consumers we find that most of the HR departments are reluctant to share it with the late employer’s family. If there was no filed or finalised divorce documents at the courts, the separated wife or husband can also apply for the same benefits at the employer of the deceased, as the marriage is binding and legal and not separated by a divorce order. Where the dependents are under the age of 21 they have the legal right to apply for the benefit.
The executor must also assist the surviving spouse or husband with the Medical Aid Fund’s beneficiary transfer from the deceased name, to theirs. The Fund will inform the executor of all the documents needed, including copies of the letters of the Master of the High Court and the death certificate. Failing to do so can lead to penalties to the estate or to the beneficiary. Waiting for the executor to appoint the administrator and the master has not received all outstanding documents to issue these letters of appointment it will cause a delay. The living spouse was on the medical aid and can do the request for continual of the medical aid plan and transfer the plan to his or her name.
Same as the transfer of ownership of a late spouses DSTV, Telkom line or mobile phone that can be transferred to the living spouse. The executor may not refuse to issue the letters of appointment that will ensure the spouse can do the transfers as these were joint services in the marriage.
Death happens all around us and ask no permission or give no pre-warnings, the sooner you get all your affairs in order, the better your loved ones left behind one day, will be able to handle the financial issues that will come.
It is also a good and responsible idea to talk to each other while still together, share the detail of the arrangements done and who the executor of the estate must be. The more you know of each other wishes, the better it can be dealt with when the time comes. If there are children of a second marriage involved, it’s best to include them so that they know what to expect and how things will play out.
From the author Annienne Nel
So much happens to you all at once when a person you love dies. You walk and talk to everyone, but your mind does not register the impact of the shock immediately. Emotionally the reality of the loss of that person comes much later, the event of the funeral seems too much and so final, it is then when you need all the support of the family around you to take care of little things that have slipped your mind.
Most recently I myself became an unsuspected widow and I know how difficult it is to go through all this, bearing the trauma and emotional heartache, feeling lost in the middle of the overwhelming crowd and condolences. Some of you have lost a family member, a wife or husband, daughter or son, our deepest condolences for your loss. May you find this article informative in a time when you need advice on what to do next.
I thought it would be a good idea to share with you such an emotional subject in this week’s blog, with so much more to prepare yourself now while you still have time, to get your affairs in order to avoid the suffering of the ones who must go on without you.
May God bless you and keep you and your families safe. I’m thinking of all the parents getting ready for the back to school and hope you are ready to embrace another busy year with your children and family life.