What to expect when…
WHAT TO EXPECT WHEN A LOVED ONE PASSES AWAY AND HIS/HER ESTATE MUST BE WOUND UP
SOME IMPORTANT POINTERS:
- Obviously at the time of the passing of a loved one, the last thing you need to worry about is the winding up of the deceased’s estate. It is in this regard that we can be of assistance to you and remove this burden from you. We are just a phone call away;
- At a first consultation you will need to bring with you various documentation of the deceased, these including:
- the original Will (if we do not have it already);
- the death certificate;
- the deceased’s Identity document (which should be stamped “deceased”);
- Identity document of the deceased’s spouse;
- full details of the children (and copies of ID’s if available) and the parents of the deceased;
- contact details of any person mentioned in the Will;
- all banking account and investment account details and documentation of the deceased;
- details of all insurance policies and RA’s and pension funds;
- details and documentation of all debts of the deceased;
- firearm licenses (and firearms where we are nominated as executors – as we will then be responsible for the storage thereof);
- registration papers for all vehicles;
- name and contact details of auditors of any business interests of the deceased, and copies of any financial statements of these businesses.
- Armed with this information we will prepare various prescribed documentation that are needs to be sent to the Master’s office. Once prepared you will be called to sign these documents;
- The purpose of these documents is to enable us to obtain letters of executorship (designates the person nominated to represent the estate), as nothing can done further in the estate without this document;
- At this stage also we will address all banking institutions, investment companies and insurance companies advising them that the deceased has passed away;
- On receipt of the Letters of Executorship (which could take anything from 6 weeks to 3 months) we are then compelled to advertise in the local newspaper and in the Government Gazette calling upon all creditors to lodge their claims with us, and also for all debtors of the deceased to pay their debts to us;
- We will then at the same time address all banking institutions, investment companies, insurance companies, all debtors and creditors that are known at the time, to close the deceased’s account (unless this is not appropriate) and/or pay their account, as the case may be;
- Once all this information is to hand (which could take anything from 6 to 12 months (and in some instances more than that) a Liquidation and Distribution Account will be prepared. Once the heirs and ourselves are satisfied with the account we will get it signed by the executor, after which it will be forwarded to the Master for his perusal and approval;
- Once he has approved (again which could take anything from 6 weeks to a few months) we then arrange for the lying of inspection of this document to take place. Again such notification must be advertised in the local newspaper and the Government Gazette.
- The aforesaid account then lies for inspection for 21 days, after which the proceeds/assets of the estate can then be paid out/transferred to the various heirs;
- The total process involved is between 8 months to 18 months, and where there are complications, even longer – but you will be kept abreast of any such eventualities;
- It must also be noted that where the total asset value of the estate is below a certain threshold (presently R125 000.00) there is no need to draft and present a Liquidation and Distribution Account, so the time applicable to these estates is much less.
WHAT TO EXPECT WHEN YOU LAY A CRIMINAL CHARGE–
SOME IMPORTANT POINTERS:
- A crime never prescribes/expires – for e.g. you can therefore report a crime that took place 10 years ago.
- Ensure that you have compiled as many details of the offence as possible i.e. the person/s that you suspect have committed the offence and all the surrounding circumstances and then report the matter to the Police Station.
- You will need to be patient at the Police Station as you may need to wait until an officer can assist you – remember you are there in the interests of the public and it is worth it!
- It does not cost you money to report a crime.
- The Police will investigate the position and then they will advise the State whether they believe it is in the State’s interest to bring a criminal charge against the wrongdoer/s.
- Ensure that you always refresh yourself about the facts of the matter, as you will be called to testify in court, sometimes even years after the offence has been committed or you reported the offence.
WHAT TO EXPECT WHEN YOU ARE LOCKED UP FOR DRUNKEN/RECKLESS/NEGLIGENT DRIVING-
SOME IMPORTANT POINTERS:
- Do not admit liability as this may affect your insurance cover.
- Do not move your vehicle until the South African Police arrive at the scene, unless your vehicle is obstructing traffic.
- Do not get into an argument with the other driver, rather simply obtain all their details, and observe the scene whilst taking photographs or making notes.
- Always try to co-operate with the Police, especially for drinking and driving or motor vehicle collision matters, as the police have the authority to release you on bail, so a little politeness and good manners will go a long way.
- You may be obliged to undergo a breathalyser test.
WHAT TO DO WHEN YOU ARE IN A COLLISION –
SOME IMPORTANT POINTERS:
- Never admit liability as this may negatively influence your Insurers liability to indemnify you for your loss. Inform the other parties, or the police that you need to consult with your Attorney and that you are exercising your legal right to remain silent.
- The parties are not allowed to leave the scene of the accident if there are any personal injuries, until the South African Police or the ambulance service arrives.
- Only move your vehicle if it is causing a traffic obstruction, otherwise wait for the South African Police to arrive at the scene of the accident.
- Take photos and videos of the scene of the accident.
- Kindly also request the police to take photos of the scene, as well as measurements in order to accurately draw a sketch plan of the scene.
- Ensure that you have your personal details, contact numbers of next- of- kin, medical aid details and insurance details easily available in your motor vehicle for e.g. in the ashtray, centre console or cubby. This information could be invaluable to strangers who are trying to assist you at a time when you are unable to provide them with this information. This small exercise will go a long way in your greatest time of need, so make the effort!
- Be alert of tow-truck recovery services who offer to tow your motor vehicle away. Ensure that you receive authorisation from your insurers or you will have to pay for their services from your own funds. Do not sign any written agreements unless you have discussed where the vehicle will be towed to, what the storage charge will be per day and the full cost of the towing before the vehicle is actually towed away. If needs be, have the tow-truck driver send a message to your cell phone confirming who they represent and the agreed upon terms of towing as stated above.
- If you need to institute a claim for civil damages against the negligent driver and/or bodily injuries from the Road Accident Fund, you will require the services of an Attorney. These are both lengthy processes. It can take in excess of 18 months to be finalised.
- Your Attorney will require various information and reports from you. He he/she will discuss this with you during your first consultation.
- If the Road Accident Fund believes that you have a claim they will make you an offer. Your Attorney will discuss the offer with you and advise you accordingly.
- Your Attorney is entitled to take 25% of the Capital of the claim, or twice the double fee of the attorney, whichever is the lowest.
WHAT TO EXPECT WHEN YOU VENTURE INTO A BUSINESS
SOME IMPORTANT POINTERS:
- Prevention is always far better than a cure.
- Utilizing the services of your Attorney before a dispute arises is always far more advantageous to you and certainly far less costly.
- Experience in a Commercial Law environment is the most important factor which businessmen must always give priority to. So often a problem arises in a business situation involving substantial financial implications, alternatively serious and often prejudicial obligations being imposed on the Company, which had not been foreseen or in respect of which, no clarity in a document form can be found.
- Businessmen often agree to a transaction with both parties at the time believing that they have a full grasp of the details surrounding the agreement which has been reached, only to discover later on that the effluxion of time has blurred memories, particularly if one of the party’s interpretation of what was agreed upon supports his own view, in possible conflict of what was originally agreed upon.
- It is a simple and certainly a most prudent avenue to make an appointment with your Attorney who will, depending on the gravity and implications of the matter, simply record in a memorandum the terms, conditions and obligations of the parties, alternatively prepare an agreement where these terms and conditions including all obligations and financial requirements are clearly set out, checked by both parties, adjusted if necessary and then signed, recording in perpetuity the actual terms and conditions of the agreement. This is easily achievable and prevents disputes, arguments or subjective interpretations at a later stage.
- An aggrieved party may approach the Court for assistance and not only is this extremely costly but also extremely time consuming which following the old adage “time is money” results in severe financial prejudice to the parties no matter what the outcome.
- One of the great advantages of an agreement prior to disputes arising, is the dispute resolution procedure described in the agreement which normally calls for arbitration by a suitably qualified arbitrator. Arbitration is usually must less costly, much more efficient and has the great advantage that an arbitration can be finalized much quicker than litigation.
- Agreements in writing have the further advantage that the business relationship of the parties remains intact as both parties will be aware of the fact that any dispute will have to be serious before arbitration proceedings are contemplated.
WHAT TO EXPECT WHEN DEALING WITH CONTRACTORS, SERVICE PROVIDERS OR CLIENTS
SOME IMPORTANT POINTERS:
- Ensure that all the terms (for e.g. who will attend to the work, how long it will take to complete the work) of your instructions/mandate, scope of work or services rendered are discussed in full at the outset, agreed upon and reduced to writing.
- Price/payment is always a sore point, discuss this in advance, as well as how and when the payments will be due.
- It is advisable to have your agreement perused by your Attorney so that he/she can advise you before you put pen to paper. Although this may carry a small cost, consulting an Attorney can be invaluable at a later stage, and this will far outweigh the minimal cost of seeing your Attorney at the outset.
- Discuss in detail what the position will be if there are any variations to the agreement. We suggest that all amendments are also done in writing, inclusive of additional costs, extended completion date etc.
WHAT TO EXPECT WHEN YOU NEED TO RECOVER A DEBT
SOME IMPORTANT POINTERS:
It is important that you have the correct information available which should include:
- Who owes you the money? Was it someone in his personal capacity, or was he representing a partnership, a close corporation, a company, a trust etc.?
- What are the personal and contact details of the debtor and sureties, including their physical home and business addresses (where applicable)?
- How much exactly does he/the partnership/the CC/the company/the trust owe you?
- What are the terms relating to his/its liability to pay you?
- Did anyone stand surety for the debt on behalf of the CC/company/trust?
What documents will you need to provide:
- Any credit application form signed by the debtor; and
- Any written contract applicable to the debt to be claimed; and
- Any suretyship document signed by any person for the debt; and
- A statement and all invoices (although if excessive this could be left for later, if needed) pertaining to the debt; and
- Any pertinent correspondence between you and the debtor that could have a bearing on the matter/liability in the matter.
The practical steps that we would need to take:
- Once we are armed with all the necessary documentation the first step we need to take is to send a letter of demand (and in terms of Section 129 of the National Credit Act) to the debtor;
- An alternative to the above, and at times done simultaneously if circumstances dictate, we will make telephonic or sms contact with the debtor and/or surety, as the case may be;
- If the debtor does not respond to our correspondence we then issue a Summons out of the appropriate Court;
- If the Summons cannot be served due to the Sheriff suggesting that the debtor was not at that address, you will be requested to yourself try and obtain an alternative address for the debtor, or we will ask whether you require that we instruct tracing agents to find the debtor;
- Once the Summons has been successfully served, and no Appearance to Defend is received form the debtor, we will apply to the Court for Judgement by default;
- If the matter is opposed by the debtor, then the matter will be handed over to our litigation department, who will then liaise with you regarding the further conduct of the matter;
- Once Default Judgement is granted we will send the debtor a notice advising him that Judgement by default has indeed been granted against him, and inviting him to come in and arrange payments of the debt;
- At the same time, in most instances, we will issue a Warrant of Execution against the debtor with the intentions of attaching his movable property;
- If the sheriff manages to attach property you will be requested to confirm that we instruct the sheriff to remove the property to his warehouse so that same can be sold in execution by auction by the sheriff;
- Where there are no goods to attach then in most instances we will issue a notice to be served on the debtor requiring that he appear in court to provide us with his financial position. In this regard we can request the court to insist that he bring copies of his bank accounts etc. with him. We can even ask that his accountant be subpoenaed to give evidence in this regard;
- Another option available in the execution of the Judgement, and if we have the debtors bank details, is to make an application to the court in terms of Section 72 of the Magistrate’s Court Act and attach his bank account.
Some practical problems:
- One of the most challenging difficulties in debt collection recovery, is the pace at which the officials of our courts, namely the Clerk of the Court and the Sheriff are able to render their services which are required in the process of the recovery;
- Although the Attorney issues all of the necessary procedural documents, it is the Clerk of the Court that has to authorise them by signing and stamping them. At times this could take many weeks and in some instances even months;
- Service of these documents have to be made by the Sheriff and his deputies. Here too we experience delays, especially when it comes to Writs of Attachment and in particular the removal of the attached goods;
- Another problem is storage costs charged by the Sheriff for the removed goods. Very often these goods are stored for some time before they are actually sold, and in some instances released to third parties. This is not always the Sheriff’s fault as sometimes the removal is challenged by a third party making a claim to the goods that might result in interpleader proceedings, or merely a delay in deciding whether to go ahead with the sale or not. This adds significantly to the sheriff’s costs;
- Finding the debtor at times causes significant delays, even when tracing agents are instructed.
WHAT TO EXPECT WHEN YOU EXECUTE A WILL
SOME IMPORTANT POINTERS:
- If you are 16 years and older you are eligible to make a Will;
- It is absolutely essential that you make a will, because if you don’t your estate will still have to be wound up, but the Intestate Succession Act will be applicable. This Act has some harsh provisions that are not always in the best interests of the remaining family members;
- It is absolutely essential that you get assistance when drafting your Will, as Wills have some serious consequences for your family so you need to be assured that their interests are cared for. Wills, as do all matters legal, have a myriad of laws and legal interpretations of those laws, so you need to minimise any negative eventualities;
- It is here that we can be of assistance to you. We have a designated Wills and Estate’s department that will ensure that you will receive the best possible advice and service
- Because of the importance we put on having a Will we are prepared to draft your Will free of charge provided we are designated the Executor (the person who assists you with the winding up of the estate). But even where we are not nominated as executor, in many, if not most cases, we still do Wills pro bono i.e. free of charge;
- The decisions you will need to make when making your Will are:
- If you and your spouse are making a Will at the same time, are you going to make separate Wills or are you going to make a Joint Will?
- Who will inherit your various assets after your death?
- If your nominated person dies together with you, say in an accident, who then should inherit your assets?
- Do you want to give any special bequest to any particular person e.g. any heirloom, your jewellery, your motor vehicle etc.?
- Do you want your children to account for any loans, gifts and/or donations which you gave them during your lifetime i.e. so not to prefer one child above the other?
- Do you have minor children, and if yes, who do you want to be their guardian in the event of the simultaneous death of both parents (you will need to canvass this with those people to ensure they are prepared to undertake this responsibility)?
- As regards any minors, and any other heir that might be handicapped in any way, do you want a testamentary trust created to cater for the needs of these people after your death?
- Who would you want to be your trustees? It could be any specific person such as a friend or relative, but it could also be ourselves as attorneys, or maybe even a mixture of the two;
- Do you want any specific person to have a limited right to any specific asset e.g. live in your house during that person’s lifetime?
- Who will receive the residue of your estate? The residue here is quite simply everything else not covered in your Will.
- Do you want your remains to be cremated; or do you have any other such requests?
- The following information is needed to draft your Will:
- Your full names, Identity number, address, contact details such as email, cell phone etc.
- All the information referred to in the previous paragraph.
- Full names and ID numbers of your heirs and legatees (those you have nominated to receive a specific asset).
- A short summary of all the information we might need in the event of your death, such as contact details of family members and heirs, details of the banks you are involved with, investment details, details of any loans to any third party etc. (which information we keep on your security file for future reference, should this be necessary).
- There are specific requirements/restrictions regarding the signing of your Will, so we prefer having Wills signed at our offices, or where not possible, we can attend wherever it is convenient.
- Armed with all the above information, and having discussed additional details with you personally in consultations, or via email or other communication options suitable to you, we believe that we will be able to present you with a clear, unambiguous, intelligible, tailored for your needs Will, a Will capable of being acted on. We await your call/email/fax.
- It should take about a week after consultation to finalise a draft Will for you, although where the Will is a little more complicated this could take up to 2 weeks. In certain urgent circumstances however we could do it in few hours.
WHAT TO EXPECT WHEN YOU APPLY FOR A DIVORCE ORDER
SOME IMPORTANT POINTERS:
Sanctity of Marriage
We as a company fully support the sanctity of marriage, and as such we wish to encourage you, before you take the first step to seeking a divorce order, to make sure that divorce is the only step left to take. Before you even consider the divorce option, we suggest that you seek the assistance of a Marriage Counselor or other professional, who may be able to help you save your marriage.
It is often said that divorces involve expensive and protracted litigation, however, this need not be the case if you and your spouse can attempt to reach agreement on, which include but are not limited to:
- Division of assets
- Payment of maintenance for children as well as spousal maintenance
- Contact and care of minor children
- How the costs of the divorce would be paid for
- The party whom would be responsible for the costs of the divorce
- The responsibility of the debts of the parties to the marriage
We have a dedicated team of attorneys who specialise in family law who will be able to assist you in the mediation and negotiation of settlement agreements.
In addition, should there be minor children, our team would further be able to assist in the preparation of parental plans which would clearly define the parental rights and responsibilities of parents such as visitation rights, maintenance of the children and other related issues.
Our team would further be able to provide sound advice with regard to the division of assets in relation to the applicable marital regime i.e. married in or out of community of property.
Should agreement be reached, it is possible to finalise an uncontested divorce within a period of six weeks to three months.
- If the matter is defended then there are various other legal steps that come into play which then slow down the finalisation of the divorce. These steps are provided for in the Magistrates Act (or Supreme Court, as the case may be), and will be dealt with and explained to you during the process, as circumstances demand.
- Our dedicated team of Attorneys understand and appreciate the importance of confidentiality, integrity and mutual respect whilst working together with our clients to achieve the best possible outcome under the circumstances.
Divorce proceedings can be stressful, emotionally and potentially financially draining, it is important therefore that you are supported by an understanding and efficient legal representative with specialist knowledge of divorces and other family law related issues. It is here that our team of professionals can be of assistance to you.
WHAT TO EXPECT WHEN YOU ENTER INTO A MARRIAGE CONTRACT
SOME IMPORTANT POINTERS:
· It is imperative to consult a notary to inform you of the various types of marriages and consequences thereof, in order for you to make an informed decision
· only a notary may prepare and execute the contract
· you may give power of attorney to a third party to enter/sign the contract on your behalf if you are unable to appear personally before the notary
· an anc must be entered into/signed before you marry each other
· the notary will require certified copies of parties divorce order and settlement agreement where applicable
· you can also enter into an anc if you are going to marry by customary law
· discuss with your partner whether your marriage will be subject or not subject to the acrual system – as much as your decision will have patrimonial consequences it will also have moral consequences
· you may exclude some or all of your assets in your contract including a business interest
· the following assets are automatically excluded: assets acquired by inheritance or donation (unless otherwise stated in the relevant will or deed of donation)
· the notary will require the net values of your individual material assets i.e. Asset value minus any debt owed in respect thereof
· please enquire with our notaries regarding the fee payable for the contract
· the anc must be registered within 3 months from date of execution or it will be unenforceable against third parties i.e. The result is that you will be married in community of property for third party purposes but the contract will be legally enforceable between the two of you
· there are certain circumstances in which a marriage contract may be concluded/registered after your marriage date – an application may be brought in the high court – please consult our offices should you wish to discuss same
· finally we wish you a memorable wedding day and a lifetime of memories together
WHAT TO EXPECT WHEN YOU SELL OR PURCHASE YOUR HOME
SOME IMPORTANT POINTERS
· consult your accountant to discuss any tax/vat implications
· inform your bank in writing of your intention to sell and thereby settle your mortgage bond to mitigate early termination charges
· engage the services of a reputable estate agency
· agents can assist you with a market valuation, however it is ultimately a willing seller willing purchaser market but be realistic
· read your mandate contract with your estate agent before you sign it
· ensure that you have enough funds for the purchase price and registration fees before you sign the contract, inclusive of pro rata municipal rates/taxes and sectional levies where applicable as these funds are payable before registration
· the registration fees are determined by the guide line laid down by the south african law society
· the law requires a written and signed sale contract
· read your written sale contract before you sign it
· a trust must already be registered in order to purchase property i.e. Before the contract is signed by the trustee
· you must obtain the minister of agriculture’s consent in certain circumstances before you enter into the contract
· an executor must be issued with relevant authority before he/she can sign the contract
· ensure all necessary signatures have been obtained in order for the contract to be legaly binding
· knowledge of all latent defects must be declared by the seller
· if the consumer protection act applies i.e. The sale is a business transaction then all defects must be rectified unless agreed upon otherwise between the parties
· the consumer protection act applies to an ordinary business transaction i.e. The seller sells property as a business
· only written contract terms are enforceable by law
· all amendments or deletions to the contract must be initialled by both parties
· negotiate the terms of the contract where necessary
· make certain you have included vat in your purchase price if necessary/applicable
· stipulate a specific date of occupation for practical reasons
· where necessary ensure that your purchase is subject to bond approval or receiving funds from another source i.e. Insert a clause
· a formal guarantee is in document form and not mere proof of an investment
· the seller must accept your offer in time for it to be legally binding
· all suspensive conditions must be met by the specified dates in order for the transaction to binding and to proceed
· engage the services of a reputable law firm/conveyancer who will take care of the legal process professionally
· feel free to ask questions to the conveyancer
· deposit funds must be invested and interest earned by the purchaser as per the sale contract
· the transfer process takes approximately 6-8 weeks from date of bond approval if there are no further suspensive conditions and given that there are no complications
· the transfer process involves various offices as well as s.a.r.s. And the local municipality
· certain documents are required to prepare documents and meet certain legal requirements
· any existing bond/s must be formally cancelled in the deeds office even if the bond is already paid up
· a municipal and s.a.r.s. Clearance must be obtained and s.a.r.s. May insist on an undertaking for any outstanding amounts owing by the seller
· bridging finance may be necessary to pay the municipality and s.a.r.s. And can be arranged by the conveyancer
· documents are lodged and examined by various examiners at the government deeds office
· consult the conveyancer for any defects raised or disputes declared
· the conveyancer must ensure that all conditions and legal requirements have been met prior to registration
· wiring, electrical fence and gas certificates are compulsory by law and payable by the seller – these costs may be deducted from the proceeds of the sale
· you will receive a statement of account in in respect of funds received and disbursed upon registration
· all liabilities in respect of the property will be settled from the purchase price and the net proceeds paid over to the seller
· you will receive a copy of your title deed approximately 4 weeks after registration date and the original will be forwarded to the bank for security and safe-keeping purposes, where applicable
· keep your original title deed in a safe place – it will cost you to apply for a certified copy
· follow up with your local municipality after registration to ensure that they have captured you as the new registered owner
· finally – enjoy the blessing of your new home!
WHAT TO EXPECT WHEN YOU ENTER INTO A MORTGAGE BOND
SOME IMPORTANT POINTERS:
· Bond originators do not charge you – they will apply to the various banks to obtain the most favourable loan for you but remember that you have a bond grant date deadline to meet or the sale will fall through
· You will sign a quotation and thereafter a mortgage loan contract with the bank – read them before you sign them – by signing you are accepting the bank’s terms for e.g. Compulsory life cover to be ceded to the bank
· Ask the conveyancer to explain the contract terms where necessary
· All the bank’s conditions must be met before registration
· The convancer has a service level agreement with the bank wherein stringent procedures and communication mechanisms apply and may not be deviated from
· Bond fees are payable before registration
· The registration fee is determined by the guideline laid down by the south african law society
· The bank will keep the original title deeds upon registration for security
· If you wish to settle your bond before the agreed upon term (e.g. 20 years) you must furnish the bank with 90 days written notice to mitigate early termination penalties/interest charges
· Even if you have settled your loan the bond remains registered against the title deed and must be formerly cancelled by a conveyancer in the deeds office when necessary for e.g. Upon the sale of the property
· Keep the bank informed in writing of any changes in your contact details – this is most important in the unfortunate circumstances of foreclosure as the summons could be served at your former address