Property

OWNING PROPERTY WITHOUT A WILL

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A4If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.

Marriage and property

When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

  1. State where your title deeds are kept and record any outstanding bonds and all insurance
  2. File up-to-date rates and taxes receipts
  3. Record details of the leases on any property you have
  4. State who collects your rent
  5. State who compiles your yearly accounts
  6. State where your water, lights and refuse deposit receipts are kept

If you die without a will

According to the according to Intestate Succession Act, 1987, your estate will be distributed as follows:

  1. Only spouse survives: Entire estate goes to spouse.
  2. Only descendants survive: Estate is divided between descendants.
  3. Spouse & descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and descendants.
  4. Both parents survive: Total share is divided equally between both parents.
  5. One parent: Total Estate goes to the parent.
  6. One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
  7. No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
  8. No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.

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)

References:

http://www.privateproperty.co.za/advice/property/articles/the-importance-of-a-will-for-homeowners/5017

http://igrow.co.za/how-property-passes-upon-death/

Family Law

WHAT IS THE ROLE OF THE FAMILY ADVOCATE?

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A3The Family Advocate has many duties but in the context of divorce law, they are mostly consulted for making sure that all parenting plans and divorce consent papers are in the best interest of any minor children involved. The public can, however, also have access to the Family Advocate, which has the added benefit of being a free service.

What does the Family advocate do?

The roles of the Family Advocate include the following:

  1. To provide education to family members and to others involved in the systems serving the family and youth;
  2. To help identify the strengths and needs of families;
  3. To be a mediator between the system and the family by helping to educate professionals on the strengths and needs of the family;
  4. To help family members understand the different roles of the agencies involved in the system and how they may affect the family and assist families in identifying and utilizing necessary services.

A Family Advocate helps state and local agencies and systems adopt more strengths-based and family-driven programs, policies, and services. The focus is to better meet the needs of families and their youth who have mental illness, co-occurring disorders or substance use disorders and improve outcomes for all, including families, youth, and the agencies they utilize.

Parenting plans after divorce

A Family Advocate also has the authority to draft parenting plans at no cost, which will help provide a minor child with a stable and suitable schedule between two parents after a divorce. A Family Advocate cannot however provide for a maintenance amount as this falls under the jurisdiction of the maintenance court. Should a parent feel like they are not sure of their rights or responsibilities towards their minor child, the Family Advocate can be approached in order to arrange a meeting between the two parties to mediate the rights and responsibilities between the two parties. This process is also at no cost, however, should one of the parties deny the meeting, the Family Advocate has no authority to subpoena them to attend the meeting.

Conclusion

The Family Advocate is a perfect remedy for parents who have their child’s best interest at heart and who aim to provide a stable environment for the child when both parents are no longer together.

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)

Estate

SHOULD I PLAN MY ESTATE AS A YOUNG ADULT?

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It is very important for you to plan your estate, which could include a living will, a last will and a living trust. This can help families prepare for difficult times when you are no longer around to assist or advise them. Our lives get busier and more complicated by the day, so estate planning for young and old becomes increasingly important. Young people should consider preparing certain estate planning documents, and in particular financial powers of attorney and living wills.

At the age of 18 a young man or woman officially becomes an adult in the eyes of the world. This means that you are entitled to make important financial, legal or health decisions about your lives. But what if something happens and you are unable to make these decisions at a critical time? Such situations can range from a small inconvenience to a life-threatening crisis, but if your estate is in order, it can speak on your behalf.

Financial power of attorney

A financial power of attorney allows you to appoint someone you trust, like another family member, to make financial decisions on your behalf. This document can be activated when you are incapacitated or right after it has been signed, and it will remain effective until you can resume charge of your own decisions again.

A financial durable power of attorney will allow the appointed person to handle important legal and financial matters on behalf of the grantor. In the case of a business or financial situation which involves the young adult, such as a passport or car registration renewal, it is convenient for the power of attorney to act on his/her behalf if they cannot tend to the problem. This arrangement may come in handy when there is a legal situation which requires quick action and the young adult is unable to attend. Families with a disabled family member can also benefit from the security of a power of attorney.

Living will

A living will enables you to state specific medical wishes if you are alive, but unable to communicate them. Artificial life support in the case of a coma or terminal illness is an issue often discussed in such a document. Preferences regarding administering of pain medication, artificial nutrition and other treatments can be dictated in this document.

The Terry Shaivo case shows what can happen if this document is not in place. The legal battle between her husband, family and state of Florida lasted for years before she was granted her wish and taken off life support.

Health care power of attorney

With this type of power of attorney, you give someone else the power to make health decisions on your behalf. These decisions regarding serious health and emotional crises will be made based on instructions which you have given to your power of attorney beforehand. Sometimes a living will is combined with a health care power of attorney, because both of these can be revoked, i.e. it can be cancelled at any time by destroying it, communicating your wishes to your doctor, writing a letter regarding the cancellation or by creating a new living will and health care power of attorney, indicating that the new will revokes all the previous ones.

Start the conversation

Every family’s legal needs are different, so perhaps you should take the first step in being prepared for the worst. Remember that every time your family composition changes, like when a child is born, you need to adapt your will to include them. Start the process and be prepared.

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)

Labour Law

WHAT CONSTITUTES A FAIR DISMISSAL?

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A1_BLabour law emphasises that every employee has the right not to be dismissed unfairly. This law defines the meaning of dismissal and when it may lawfully occur. Substantive and procedural fairness determines whether the dismissal was fair.

What is a dismissal?

Dismissal means the following: The termination of a contract of employment with or without notice, and also if the employer fails to provide a fixed-term contract, or he/she does renew the contract, but on less favourable terms than the employee had reasonably expected.

When is dismissal fair?

Section 188 of the Labour Relations Act provides that dismissal is fair if the employer can prove that the dismissal is related to the employee's conduct or capacity, or if it can be proven that the dismissal is based on the employer's operational requirements. Dismissal is usually fair if a fair procedure was followed. Good practices are set out in legislation which outlines the discharge processes and must be taken into account.

Labour legislation provides for three different types of discharge, namely dismissal due to misconduct, poor performance or operational requirements. Certain procedures must be followed for each type of discharge. Employers sometimes confuse misconduct with poor performance. It is very important that the correct procedure is followed, but it is also necessary that the cause of the unsatisfactory behaviour is determined.

What is misconduct?

Misconduct is when the employee has violated certain rules such as rules against dishonesty or theft, or has refused to obey reasonable and lawful instructions. In these situations, the employee has decided not to honour the code of conduct. The employee has knowingly violated a rule and therefore the person should be disciplined. This may result in written warnings and/or possible dismissal.

What is poor performance?

In contrast, poor performance involves situations where the employee is not in deliberate violation of any regulations but it may involve circumstances over which the employee may not necessarily have control. In this case, other factors could be the cause of poor performance, such as lack of resources, inexperience, inadequate training or poor health. It is clear that the employee is not directly responsible for the behaviour and therefore, disciplinary actions cannot be taken. The employee cannot be blamed for something like illness, therefore a counselling process is followed in lieu of a disciplinary hearing in order to find solutions for the poor performance.

Operational requirements

The last type of dismissal is due to operational requirements. This type of discharge has to do with economic conditions, including a shortage of work or a lack of money. These are cases where the employer can no longer afford to retain a certain number of employees or new computers or sophisticated equipment have been acquired which renders a number of employees redundant. These are factors beyond the control of the employee and involves steps that the employer takes to protect his/her business from being ruined financially.

Conclusion

It is very important that the process contained in section 189 of the Labour Relations Act be followed. This process requires the employer to engage with the employee in a meaningful way in order to negotiate and disclose certain information before dismissal can take place.

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)

Schnetler’s internal news

WHAT MAKES ANNERINE TICK?

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14311251_1831191280448809_8913264364133753815_o-2Annerine du Plessis is one of Schnetler’s Litigation Attorneys, who also heads-up the Litigation Department. Annerine has been part of the Schnetler’s team for the past 4 years. She has taken a fledgling department and grown it into a very busy and ever-expanding division of the firm. As the saying goes, never judge a book by its cover – she may be young, but she knows her stuff!

I sat down with Annerine, armed with a list of questions aimed at allowing us to discover a little more about who Annerine is.

Where did you grow up and attend school, and thereafter university?

I grew up in the Northern Cape, and attended high school in a small town named Groblershoop, which is near to Upington. After matriculating, I packed my bags and set out for the Western Cape to become a Matie. I still miss those care-free days!

What or who influenced you in your decision to become an attorney?

My late father was a Magistrate, and I used to love sitting in his courtroom during school and varsity holidays listening to trials. My mother always says that I love arguing and fighting for a cause, so I suppose for me, law was the obvious career choice!

For how long have you been practising as an attorney?

After completing my two years of articles, I was admitted as an attorney of the High Court, and have now been practising as an attorney since 2010.

What part of your work is the most interesting to you and brings you the most satisfaction?

I am a very inquisitive person by nature, and in my line of work I learn something new every day. When I am confronted with a legal matter or question, I always start off by dissecting the issue/s at hand, carrying out extensive research on the topic if required, and then by evaluating what the possible solutions to the problem may be. Nothing brings me more satisfaction than a client who appreciates my brutal honesty regarding the feasibility of pursuing a matter.

I am sure that many people would agree that the last profession that comes to mind when meeting you is ‘law’. Is there any other profession/field of work that you could have been/are interested in?

I get that a lot! Yes, looks can be deceiving! I have been blessed with a creative and artistic side to my personality. It has always been a dream of mine to have my very own art studio/gallery, combining it with an intimate arts theatre. Let’s say that this is my 20-year goal!

Another great love of mine, is teaching. My dream is to complete my Master’s Degree, and thereafter to lecture at my alma mater.

What do you enjoy doing when you aren’t at the office?

This might sound boring, but I am crazy about sleep! My colleagues will confirm that I religiously have a lunch-time nap in my office. I am the proud mother of a beautiful two-year-old daughter who keeps me busy, and with whom I adore spending time with. I am also a big movie fan!

Compiled by: Laura Ames

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)

Schnetler’s internal news

WHAT’S COOKING AT SCHNETLER’S?

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image_schetler

So we have yet again reached the end of another year! 2016 was filled with its fair share of ups and downs.  Our firm has said goodbye to two of our staff members and welcomed a new one. We have had some personal set-backs, have reached successes and learned from our failures, but together we are a stronger team.  The Schnetler’s staff have been working very hard this year to live up to our motto of excellence personified and we are proud of each and every one of them.

On Friday, 25 November we combined our year-end function with some team building and we all spent time together at Giggling Gourmet in Green Point where we were tasked with cooking interesting dishes which at the end made up our fabulous feast. The MasterChef potential was certainly not lacking and we had a couple of good laughs at ourselves –  who would have thought that attorneys can shine in the kitchen! Visit our Facebook page to see some more fun photos taken on the day.

In this last newsletter article of the year we would like to thank all our clients for making 2016 a most interesting one. The Schnetler’s team wishes you all a Merry Christmas and prosperous New Year!

Compiled by: Annerine du Plessis

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)

Wills & Testaments

CAN I AMEND MY WILL?

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a3Having a Will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change your Will and how your estate will be administered after your death. You may have had a child following the drafting of your Will, for example, and wish to include him/her in your Will. You may have also acquired more assets and would like to reconsider how these are divided between your possible heirs/heiresses.

What is a Codicil?

When you decide to make an addition to your Will, or a minor alteration thereto, you may make use of a Codicil. A Codicil is a schedule or annexure to an existing Will, which is made to supplement or to amend an existing Will. A Codicil must comply with the same requirements for a valid Will. A Codicil need not be signed by the same witnesses who signed the original Will.

What if I want to amend my Will?

  1. Amendments to a Will must comply with the same requirements for a valid Will and if you cannot write, with the same requirements listed under that heading.
  2. When amending a Will, the same witnesses who signed the original Will need not sign it.

Must I amend my Will after divorce?

A bequest to your divorced spouse in your Will, which was made prior to your divorce, Will not necessarily fall away after divorce.

  1. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
  2. This provision is to allow a divorced person a period of three months to amend his/her Will, after the trauma of a divorce.
  3. Should you, however, fail to amend your Will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in your Will.

References:

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

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)

Property

WHAT IS A TITLE DEED?

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a4If you are planning to buy a new property, you will need to get the Title Deed transferred into your name in order to prove that you are the owner of the property. You will need the assistance of an attorney specialising in property transfers (also known as a conveyancer) to help you transfer the Title Deed into your name.

You will only become the owner of the property when the Registrar of Deeds signs the transfer. Once it has been signed, a copy of the Title Deed is kept at the Deeds Office closest to you.

A Title Deed is documentary proof of ownership in terms of the Deeds Registries Act 47 of 1937. Each property has its own separate Title Deed. It is an important document containing all the details pertaining to a particular property.

These details are:

  • The name of the existing owner as well as the previous owners.
  • A detailed property description which includes its size.
  • The purchase price of the property paid by the existing owner.
  • Conditions applicable to the zoning, use and sale of the land.
  • All real rights registered in respect of the property.

The owner will normally have the Title Deed or a copy thereof in his possession. Before signing an offer to purchase carefully scrutinise the Title Deed.

What is the Deeds Office and the Deeds Registry?

There are numerous Deeds Offices throughout South Africa. Each Deeds Office holds a Deeds Registry, containing filed Title Deeds of all the properties in its particular jurisdiction. All the Deeds Registries are linked to a computer network. Your estate agent can, via a computer-linked facility from his office, examine any Title Deed (registered from 1980) in the country’s combined Deeds Registry.

What’s the Difference Between a Property Deed and a Title?

Title is the legal way of saying you own a right to something. For real estate purposes, title refers to ownership of the property, meaning that you have the rights to use that property. It may be a partial interest in the property or it may be the full. However, because you have title, you can access the land and potentially modify it as you see fit. Title also means that you can transfer that interest or portion that you own to others. However, you can never legally transfer more than you own. Deeds, on the other hand, are the actual legal documents that transfer title from one person to another.

References:

Wills & Testaments

COMMON QUESTIONS ABOUT A WILL

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a4_aLife is unpredictable, if something were to happen to you, do you know where your assets will go? Having a Will is one of the most important documents you could own, especially if you have children. Below are important reasons why this should be one of your top priorities.

Why should I have a Will?

A Will enables you to name your heirs. Should you die without a Will (intestate) your assets will be divided according to the Intestate Succession Act. That may benefit people whom you did not wish to name as your heirs.

Who is allowed to sign your Will as witness?

Your will must be signed in the presence of two witnesses, who also sign in each other’s presence. Only persons older than 14 years are qualified to sign as witnesses. 

What is the cost of Executor’s fees?

The maximum remuneration payable to an executor is determined by law and is currently fixed at 3.5% of the total gross estate value. Executor’s fees may, however, be negotiated with the person who has been appointed as executor of your Will. 

How often should I revise my Will?

It is recommended that Wills be revised at least every 2 years. It is also important to review your Will after events like marriage, birth, divorce or the purchase of property.

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)

Law

LET YOUR CHILD STUDY LAW

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a3_aOn 1 August 2013 PPS released the latest results of the South African Legal Services Survey.  Of the legal professionals, including 423 attorneys, who participated in the survey, only 52% had confidence in the efficiency of the court and judicial administrative system.

Speaking to colleagues, horror stories are plentiful. Stories of civil court files gone missing for months, sheriffs without vehicles, backlogs in courts regarding motions, default judgments and maintenance claims, sheriffs’ offices taking up to six months to serve documents, chaos in filing of documents at the Masters’ Offices, delays in transfers at the Deeds Offices, backlogs in courts, backlogs at the Masters’ Offices and other Registrars, loss of dockets or other important evidence, absence of knowledge and lack of work ethic.

Serious concerns regarding new legislation pertaining to the courts and the legal profession have some of us running for the hills, this time to Australia. It is a bleak picture indeed, because for some, the wheels are falling off and the end is nigh.

Why, then, did I recently encourage an exceptionally bright young man to study law and not engineering? This is because this country and its people need exceptionally bright people to become attorneys, advocates, state prosecutors, magistrates and judges. The law has such an influence on all aspects of our lives that we cannot afford to have a legal profession without the necessary knowledge and abilities to protect us all.

If it were not for exceptionally bright people in the legal profession, we would not have had the ability to register our child in the school we deem appropriate, free from the bounds of so-called “feeding areas”. We would not be able to return that set of encyclopaedias purchased from the salesmen who came knocking on the door, would have to pay extraordinary interest on our credit agreements and have no guarantee of safety of ownership of our property.

Bright, able minds in the legal profession are of utmost importance to us all. And yes, transformation regarding race and gender is crucial, necessary, and should be embraced and encouraged. Unfortunately, the low entry-level requirements of the LLB degree has resulted in a large number of students with very few, if any, exceptionally talented candidates. The latter prefer better paid, less regulated occupations. All the more reason why the brightest and most talented should study law. By abandoning the profession and thus the legal system we, as the people of South Africa, will be much worse off. The truth is that the legal profession actually makes a difference in your life, each and every day.

Life in an attorney’s office is not as portrayed in an American television series. It is not Suits or Boston Legal (although some of us wish!). We do not work in designer clothes and not all assistants and secretaries are beautiful, blonde, hourglass-figured and sharp-witted. Our offices are not all glass-walled designer areas with quirky memorabilia, couches and clean desks. We have files – hundreds of them. And that is why you in all probability only consult with your attorney in the boardroom or consultation room, as their office space is cluttered with towers of files!

The work requires long, lonely hours of drafting, reading, thinking, considering, re-considering, and arguing with oneself. You need to work exceptionally hard on each matter to achieve the best outcome for the situation for each of your clients. Not all clients have unlimited resources and thus you have to work within the constraints of their financial ability. Attorneys mostly do not charge fees for all of the effort and time spent.

The one thing that each branch of the legal profession has in common, is that at the end of each day, regardless of when the day ends, you can close your door knowing that you have actually made a difference in somebody’s life, whether it be settling a divorce or finalising an amalgamation agreement, collecting the outstanding levies for painting of a sectional title scheme building, having your client’s debt review successfully granted, or the successful opening of a township plan.

Another satisfaction is knowing that you will never know EVERYTHING – the law is too extensive, too complicated and develops too rapidly to keep up with the intricacies of it all. There will thus always be something new to read, learn or to consider. You will always be able to consider new approaches to old problems and may even argue the same point in law from different perspectives.

If you are willing and able to work hard, learn, and grow in the legal profession you will be able to look back one day on your career with delight and satisfaction because no two days were ever the same. No court appearance, litigation, transfer or contract is ever the same; and while you were busy you actually had fun – enjoyed the good argument, the adrenalin rush to get the urgent application served, the ticking clock on the service of the plea, answering affidavit, reply or summary judgment application.

That is why you should encourage your talented and bright child to study law. He or she might just make the difference you may need one day.

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)