1. Probate | Probate is the process by which a Will is authenticated by a court-supervised process. Not all assets will require a grant of probate. Having a separate Will dealing with your offshore assets means that your offshore assets and South African assets can be dealt with simultaneously. This will allow for the administration of your estate to be an easier and quicker process without having to wait for sealed copies to be issued by the Master of the High Court. |
2. Will validity requirements | Different countries have different Will validity requirements, and these might differ from that of South Africa. Having one Will that deals with your worldwide assets could result in that Will not meeting the validity requirements of a country where your assets are situated and the Will may not be recognised as valid in such country. This could have the effect that the assets in that country are dealt with in terms of that country’s laws of intestate succession. |
3. Legal terminology and language | The legal terms that we use in South African Wills are not necessarily recognised in other countries. South African legal terms are primarily based on Roman Dutch law, while different countries have different laws, based on other legal systems. In some cases where one Will is used for assets situated in different countries a legal interpretation would have to be obtained for legal terms in the Will, which can be costly and cause delays. If the Will signed in South Africa is not in English, a translation will be required, again involving delays and costs. |
4. Inheritance taxes | The rules relating to inheritance taxes generally vary from country to country (if applicable). In order to determine whether an asset will be subject to a specific country’s inheritance tax rules it is important to establish the “situs” of that asset. Both the US and the UK levy inheritance taxes on assets which qualify as situs assets in those jurisdictions. Wills should be carefully drafted, taking into account which probate/letters of executorship would be most practical when the relevant filings have to be done in those countries for inheritance tax purposes with the respective revenue authorities. |
5. Freedom of Testation v Forced heirship | In South Africa we have freedom of testation which means that you can bequeath your assets to whomever you want to in your Will. Some countries have forced heirship rules which generally means that a portion of your assets have to be transferred to certain heirs such as children or a spouse on your death, with often only a portion thereof available for you to freely bequeath in your Will. Some EU countries are parties to an agreement making it possible for you to make an election in your Will that the succession laws of your nationality will apply to your estate. |
6. Age of beneficiaries & location of their guardians | A testamentary trust is often set up by parents in their Wills to hold inheritances for minor children. If the nominated guardians to your minor children live overseas it would not make sense for a trust to be set up in South Africa to be applied for the benefit of the minor children if they are relocating to go and live with the guardians in a different country. |
7. Offshore Assets & SA Trust | A South African Trust in terms of Exchange Control Regulations may not hold offshore assets directly. If you have one worldwide Will wherein you bequeath your assets to an existing South African Trust, or a Trust that is set up in your Will after your death, your offshore assets will have to be repatriated to South Africa in order for the Trust to hold them. |
Kindly contact Tamryn de Villiers at tamryn@fidelisvox.co.za for further information on the above or if you would like assistance with any aspect thereof.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)