Why should you choose your own conveyancer?

You might not realise it, but if you are selling your property, it is very important that you (and not your estate agent or the buyer) choose the right conveyancer for you. Even though the purchaser is responsible for the costs of the conveyancer, the risk to the seller must not be overlooked.

If for instance the buyer takes early occupation and their bond repayments are higher than the occupational rent, they may consider it to be in their interests to delay the transfer for as long as possible. A skilled conveyancer will have the transfer process moving as quickly as possible.

As the seller, unless you have agreed otherwise, you have the right to choose an attorney. This right is recognised in common law precisely because the disproportionate risk to the seller is acknowledged.

Do not give up this right! Contact us today if you would like to know more.

Executors and you

What happens after we die? We might not be the authority on perennial, existential questions, but we can give you an idea of the bureaucratic processes that must be followed in South Africa.

When someone dies, their belongings and their liabilities need to be administered – creditors need to be paid, possessions and money need to be given to beneficiaries, paperwork must be compiled and submitted to the Master of the High Court, estate duty must be calculated and paid to SARS (to name a few of these responsibilities). The person (or people) who perform this task are Executors.

Anyone capable of executing a valid will may choose their preferred executor. It should be someone that the testator (person who signs a will) trusts to look after their interests and carry out their wishes. It is the duty of the executor to use the funds of the deceased estate to pay for:

  1. The funeral expenses;
  2. The legal expenses of winding up the estate;
  3. Taxes owed by the deceased; and finally
  4. All other debts owed by the deceased.

An executor is expected to have knowledge of the law and procedure around deceased estates. They will be held personally liable if they are negligent in the exercise of their duties. For this reason, executors without such knowledge and experience should approach a legal specialist (such as De Wet -Van der Watt) to represent and assist them in their tasks. We at De Wet Van der Watt are so confident in our abilities that we usually encourage people to nominate their trusted loved ones (rather than nominate us) as executors. This means that if the executor is for whatever reason not happy with the service that they are receiving from us, they may terminate our mandate and seek help elsewhere.

While the testator may nominate an executor, it is the Master of the High Court (where deceased estates are registered) that will appoint the executor. If they believe that the nominated executor is not fit for the role, an alternative executor may be appointed. The appointment of an alternative executor might not be ideal. A trusted loved one might be more suitably motivated to finalise the estate and to follow courses of action the lead to the greatest utility of the estate.

Before you decide who you wish to nominate as the executor of your estate, schedule a consultation with one of the experts in deceased estates at De Wet – Van der Watt. They are equipped to help you out with any specific concerns that you have around this issue.

Antenuptial Contracts

Under South African law, if you marry without an Antenuptial or Pre-nuptial Contract, then you are married in community of property. Marriage in community of property means that all your assets are joined together and both of you control it together. This is not altogether bad as both parties have to discuss and agree how their money is to be spent or saved and, one spouse cannot bind their joint estate as surety for a third party without the consent of the other spouse.

More sophisticated couples normally prefer to control their own goods and sign an Antenuptial Contract (before they get married of course) agreeing that they will each look after their own estate and will not be responsible for the debts or outgoings of their loved one. This is a normal contract and a precedent of one is available here. This also means that if one of the parties goes bankrupt, this does not affect the estate of the other party which stays independent.

It was found that, as is usual in most marriages, when the couple are blessed with children, one spouse’s career path (historically that of the woman) is interrupted as they take care of the young ones. This means that, if the marriage terminates through divorce (a marriage can only terminate through death or divorce and happily only 30% terminate in divorce), the one spouse has the money and the other has the children with a great need for the money; this often leads to acrimonious fights through the courts. It is also unfair that both parties work equally hard but only one is paid money while the other gets the more valuable relationships.

In 1984 the Matrimonial Property Act provided that, unless it was especially excluded, an accrual system would apply to everyone who concluded an Antenuptial Contract. The accrual system simply means that, at the termination of the marriage (divorce or death), whoever has less assets can claim enough from the other party to make sure they both have the same amount.

At the start of the marriage the parties can agree to exclude some assets or their value from the accrual; this is because that party acquired or built up their estate before they joined together as partners. Normally excluded are also any inheritance, gift from the other party and personal damages that one party suffers. A precedent of the usual contract can be found here. We choose to include all the provisions rather than refer to the Act as we don’t know where the parties will be when the marriage terminates and it would be inconvenient to get a South African law expert to explain the law in Outer Mongolia 😊.

Once the Contract is signed before a Notary it is registered by the Registrar of Deeds, microfilmed and the original returned to the parties. The Marriage Officer only needs a letter from the Notary confirming the Contract, not the contract itself, which means it can be signed a few minutes before the “I do” is spoken – although it is best to discuss and sign at least a few days before the wedding.

There are other interesting implications and possible provisions which can be discussed with your Notary. Contact our friendly team to schedule a consultation.