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Estates, Wills and Trusts
A difference in opinion is sometimes inevitable whenever a decision has to be made jointly amongst a group of people, and often at times this results in confrontations and disputes. In some instances, these disagreements often have to be resolved before the Courts or by any other dispute resolution process available. In most contracts even, parties usually provide for a dispute resolution process should a dispute arise during the currency of the agreement. What happens when, during the administration of a deceased estate, the co-executors do not agree with each other?
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The responsibilities and obligations of a Trustee are fiduciary in nature, much in the same way as those of a company director. Trustees ought to conduct themselves in a manner that serves the best interests of the trust and the beneficiaries. Where the conduct of a trustee negates this notion therefore, he/she may be removed from such position.
In a recent landmark ruling, the Constitutional Court (Concourt) confirmed the invalidity of Section 1 (1) of the Intestate Succession Act 81 of 1987, as well as Section 1 of the Maintenance of Surviving Spouses Act 27 of 1990.
Not all people who find themselves having to deal with Trusts understand what it is all about, therefore in this brief discussion we will highlight the prominent issues that one has to familiarise themselves with in order to safeguard their interests when dealing with a Trust.
Since it is a matter of practice and not one premised on the provisions of the law, the requirement to appoint an independent Trustee may be dispensed with in the event that good cause is shown that the interests of creditors will not be compromised.
There is absolutely no requirement at law that a Trustee must be a professional, but that such person must be a major and have an appreciation of what is expected of them, the duties they are accepting and capacity to discharge such responsibilities.
The essence behind a Trust is for the Trust to own property in its own right so that such property does not form part of the estate of the Trust Founder. A Trust, however, does not have legal personality. The Trust can therefore acquire and accumulate properties and assets as a separate entity from the Trust Founder and persists even after the Trust Founder has passed on.
The responsibilities of an Executor are fiduciary in nature and thus the Executor must at all times be honest, diligent, truthful as well as to see that the process is endowed with fairness and compliance. In the event that the Executor conducts themselves in a way that is detrimental to the proper administration of the deceased estate, there are provisions for the removal of such Executor.
A Will is designed to capture the wishes of the deceased with regards to how they prefer their estate to devolve to the nominated heirs. Such Will contains instructions as to how assets must be distributed to the heirs under that estate and in some instances, who must preside over such process (Executor).
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