Hinrichsen Attorneys - Cape Town.

Due to Hinrichsen Attorneys ever expanding presence, and in accordance with client demands, we have established a Cape Town Branch which opened in March of this year.

While our new office offers all of the same services provided by us nationwide, our Cape Town branch, managed by Elke Kiehm, specialises in family law and deceased estate administration. This includes -

Divorces

A divorce is the legal dissolution of a marriage by a court or other competent body and is particularly traumatic for all parties involved. Our Cape Town team, although newly established, already possessing expertise in effective divorce litigation, mediation, and settlements.

Mediation Services

Mediation is a voluntary, interactive solution focused process used in a way to assist and resolve disputes between two or more parties. Mediation focuses on the needs and rights of the parties and helps them to negotiate a mutually beneficial settlement agreement that aims to reduce the emotional upheaval by ensuring an uncontested divorce. Parties who enter into a settlement agreement have more certainty in as far as the care and contact of their minor children, maintenance and the equitable division of their assets. Mediation is broadly becoming recognised as a more peaceful and accepted solution to end conflict.

Enforcement of orders

whilst a Court Order is binding, it is an unfortunate reality that some parties tend to flout them which necessitates an application to a Court for the enforcement thereof, we aim to assist our clients by facilitating these applications as quickly and as effortlessly as possible.

Wills and Trusts

If you have minor children or if you have dependants with disabilities it would be prudent to consider establishing a trust in your will into which your assets can be transferred and used for your children or dependants' benefit should either you or your partner die simultaneously while they are still minors. Making provision for such an eventuality is even more advisable if you are a single parent.

In terms of the Administration of Estates Act, you can leave cash to minor children (under the age of 18) in your will, but the cash cannot be paid directly to a minor. The executor of your estate will have to pay the cash into the Guardian's Fund, pay it to the guardian of a minor or to a trust, depending on the terms of your will. Most life assurance companies will also not pay out a policy to a minor.

If the money is paid into the Guardian's Fund, your children's guardian will have to apply to the fund to withdraw money to support your children. This is a laborious, time consuming process and not advisable particularly if your child needs immediate funding, for example, to pay a school registration fee. In addition, the fund, which is run by the Master of the High Court, may not make the best use of your assets.

You can leave property, such as your home, to a minor, but someone will need to take responsibility for maintaining the property and for paying the rates and other accounts. A minor is also by law not able to sign the documents to sell the property. A trust can be the answer to these problems, and, in the case of minors, it can be set up to last until the children are old enough to inherit.

There are two ways you can establish such a trust:

You can set up an inter vivos (or living) trust while you are alive; or

You can set up a testamentary (or will) trust, which will be established on your death.

Trusts are generally taxed at higher rates than those that apply to individuals, but you can set up a special trust, which enjoys the same tax rates as individuals, for a child or beneficiary who is under the age of 18 or who is unable to take care of him or herself.

An inter vivos trust or a testamentary trust set up in your will can be a special trust if:

In the case of a testamentary trust, the youngest beneficiary of the trust (person who receives benefits) is still under the age of 18 on the last day of the tax year; or

In the case of either trust, the beneficiary suffers from a serious physical disability or mental illness, as defined in the Mental Health Act, that prevents him or her from earning sufficient income for his or her maintenance or from managing his or her own financial affairs.

A trust is a separate legal entity and is usually created by a trust deed. The trust deed sets out the rules of the trust and should include details such as the names of the trustees, the fees payable to the trustees, the investment mandates and any restrictions, the names of the beneficiaries, and when the income and assets can be distributed to the beneficiaries. If you set up a testamentary trust, all this information needs to be contained in your will.

Trusts can be managed in one of two ways:

A non-discretionary trust, where you determine how your assets must be distributed among your beneficiaries. For example, you can stipulate that your three children must benefit equally. The beneficiaries then obtain a vested right to the trust assets and this right will form part of their estates.

A discretionary trust, where you give the trustees the discretion to decide which of the beneficiaries will be paid and in what percentages. It is practical to leave a letter of wishes to your trustees giving them guidelines as to how you want the assets in the trust to be used, but the trustees have the discretion to decide how your assets will be distributed among your beneficiaries.

In a discretionary trust, the beneficiaries do not obtain vested rights to the trust assets.

As the author of your own testament you appoint the trustees. Choose people who will apply their minds and act in the best interests of your young children. Your trustees should have among them someone with legal knowledge and someone with accounting knowledge so that they are aware of legal and tax changes that affect your trust. It is a good idea to appoint both a professional - such as your financial adviser, lawyer, accountant or a trust company - and a family member who knows your dependants and their needs. You can also appoint the guardian of your children as a trustee.

You must appoint at least two trustees; however, it is preferable to have three and at least one of them must be independent (which generally means someone who won't benefit from the trust). If you appoint a professional trustee from a company that is able to run the trust for you, you should at that stage negotiate the fees that will be charged to administer the trust and pay the trustees.

Deceased Estates

A deceased estate comes into existence when a person dies and leaves property and/or a document that is a will or is intended as a will. The estate must then be administered and distributed, either in accordance with the deceased’s will or, if the deceased did not leave a will, in accordance with the provisions of the Intestate Succession Act. The Administration of Estates Act, prescribes the procedure to be followed for administering a deceased estate.

The estate of a deceased person must be reported to the Master of the High Court within 14 days of the date of death. The death can be reported by any person who has control or possession of any property belonging to the estate of the deceased, or who has control or possession of a document by the deceased that is or purports to be a will. In an attempt to assist the families of deceased persons we attend to the administration of a deceased estate with sensitivity and promptness with the understanding that families require closure as soon as possible. 

Prepared by Elke Kiehm