You may need a separate Will dealing with your non South African assets.
A Will drafted and signed in South Africa may be, but is not always, sufficient to deal with your South African and non – South African assets.
If you have, for example, externalised your discretionary foreign investment allowances and now hold investments in your own name in other countries, you may need to consider a separate Will dealing with your non South African assets, for the following reasons:
South African law is mostly based on Roman Dutch law principles, with some English law influence. Some legal terms used in SA wills are not known in certain foreign jurisdictions, which may result in delays and costs to obtain legal interpretations. It may also be necessary to have your worldwide will translated and sealed before sending it to the foreign executor or agent. When drafting a separate Will dealing with the assets in a specific jurisdiction, the legal terms as known in the laws of that country can be used in the Will.
In common law jurisdictions, such as the UK or the US, both immovable and movable assets may be subject to inheritance taxes being levied at rates of up to 40% on assets classified as situs assets in those countries. The Chambers Murray Latin-English dictionary translates the Latin word ‘situs’ as ‘lie, position, situation’. In terms of private international law the situs of assets are generally determined by the location of immovable property, the place where shares are registered or listed, the place where bonds have been issued, and in the case of intermediated securities in some cases looking at the situs of the security itself and in others at the situs of the underlying assets. It often proves to be extremely difficult for an executor in South Africa dealing with a worldwide estate, to deal with the tax authorities in other jurisdictions in this regard.
Legislation in different foreign jurisdictions may differ substantially regarding validity requirements for the signing of wills. When separate Wills are drafted dealing with assets in certain jurisdictions, the validity requirements can be taken into account and adhered to.
With a separate offshore will in place, there will generally be no need for your executor to obtain sealed copies of your Will and Letters of Executorship from the Master of the High Court in South Africa to provide to the person who will apply for a grant of probate in the foreign country, which process may cause unnecessary delays.
The separate Will allows an offshore solicitor to be appointed to obtain a grant of probate abroad where necessary.
Succession laws and validity requirements in other jurisdictions can be taken into account when drafting the separate Will.
Bequests are often made to SA trusts in wills dealing with worldwide assets, for instance when the balance of an estate after specific bequests is dealt with which may include assets outside SA, with the unintended consequence that the SA trustees are not allowed to hold the non SA assets outside SA in the name of the Trust, in terms of exchange control regulations, and have to then sell them and repatriate the funds to South Africa.
When drafting Wills dealing with non -South African assets one has to take care that the separate Wills do not revoke each other and that the Wills do not deal with the same assets.
Forced heirship rules in some jurisdictions should be considered in drafting offshore Wills, as immovable property situated in jurisdictions such as Portugal may be subject to these rules irrespective of the bequests relating thereto in a Will, which may cause the ownership of these properties to be transferred to persons other than intended by you.
We can assist you with the drafting of Wills dealing with your non – South African assets. Please contact Tamryn Michau at tamryn@fidelisvox for assistance in this regard.
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)