F.A.Q

SPC Legal

Common questions about our fiduciary services

Take a look at the estate planning questions that commonly recur and often remain unanswered.   Perhaps you came across something on our website that has left you wondering.

If we do not address your question here, please reach out to us, as your question will be valuable to someone else too!

Wills and Testaments

A testament or a will is a document of legal nature that contains a person’s final wishes in the event of death. 

Any handwritten, printed, or typed will that is signed by the testator/testatrix and not less than two witnesses that is deemed fit to act as such.  Each page of the will has to contain the signature of the testator and/or testatrix, and the signatures of the witnesses need to be present on the last page.

Your original will should be kept safe by an institution or by a person whom you trust.  You can have more than one originally signed wills.  A copy of a will is deemed invalid.

Anyone who is mentally capable, that is older than 16 years of age who owns assets, is married, has children, or has any special wishes as to how they would like to be laid to rest.

The beneficiaries of your will can be a person, a charity, a trust, or your estate.  Your beneficiaries may not sign as a witness in your will.

 

Guardian Fund

The Guardian’s Fund was created to administer and keep safe funds of fiduciary nature.  It is administered by the Master of the High Court.

 

When the Master receives or accepts any money he/she must open an account in the books of the Guardian’s Fund in the name of the person to whom the money belongs or the estate of which that money forms part.

If it is not known to whom such money belongs, the account may be opened in the name of the person from whom the money is derived, as the estate from which the money has been received, or the estate from which the money is derived, as the case may be. money in the Guardian’s Fund is invested with the Public Investment Commission and audited annually.

 

Interest is payable on amounts paid into the Guardian’s Fund on behalf of any minor, persons incapable of managing their own affairs, unborn heirs
and persons having an interest in the moneys of a usufructuary, fiduciary or fideicommissary nature.

The interest is calculated on a monthly basis at a rate per annum determined from time to time by the Minister of Finance. The interest is compounded monthly.

Interest is paid for a period from a month after receipt up to five years after it has become claimable, unless it is legally claimed before such expiration.

If it is not known to whom such money belongs, the account may be opened in the name of the person from whom the money is derived, as the estate from which the money has been received, or the estate from which the money is derived, as the case may be. money in the Guardian’s Fund is invested with the Public Investment Commission and audited annually.

 

An applicant can claim maintenance/allowance from the Guardian’s Fund. The Master may pay from interest, as well as up to R250 000 from the invested capital for maintenance, like school and university fees, clothes, medical fees, boarding and lodging and any other needs that can be fully motivated. Maintenance can be claimed by the guardian/ tutor/curator/person looking after the person of the account holder by way of an application on form J341 & J341A, supported by quotations and accounts.

Payments can be made directly to the service provider, like schools, universities and bookshops.

Minors
A minor can claim the invested money, as well as the accrued interest on reaching the age of majority (on his/her eighteenth birthday, marriage or declaration of majority by the High Court). However, a Testator/Testatrix can stipulate another age when a beneficiary is entitled to the invested capital in their Will. Money can be claimed by the beneficiary when entitled by way of an application on form J251, supported by a certified copy of the account holder’s identity document/passport/ marriage certificate/order of court and verification of fingerprints of applicant.

Usufructuaries’ / Fidei commissaries
In the case of usufructuaries’/fideicommissaries, those entitled to the interest can claim the accrued interest on a monthly basis by way of a written application (J341) giving full particulars of the instrument, which created the usufructuary/fideicommissary interest. The owner can claim the invested capital when entitled thereto (usually after the death of the usufructuary/fideicommissary) by way of an application on form J251 & J251A, supported by a certified copy of the death certificate and beneficiaries identity document/passport, banking details and verification of fingerprints of applicant.

Untraced or undetermined beneficiaries
In the case of untraced or undetermined beneficiaries, money can be claimed by the beneficiary when the account comes to his/her attention. The application must be made on form J251, supported by a certified copy of the account holder’s identity document/passport and verification of fingerprints of applicant. (The latter can be done at any Master’s Office as well as various Magistrate Courts).

Money/interest/maintenance is paid by EFT deposit in the payee’s banking account.

The Master administers all funds in the Guardian’s Fund free of charge and no administration cost is paid by account holders.

The only commission that the Master claims – and pays over to the Receiver of Revenue – is a 5% commission on dividends paid to the Guardian’s Fund by trustees and liquidators on behalf of missing creditors in insolvent estates.

A practice whereby persons search the registers of unclaimed monies, seek out the persons entitled thereto and obtain cession of their rights is prohibited by a direction of the Minister of Trade and Industry in terms of the Harmful Business Practice Act 71 of 1988. Notice 69 of 1965 (Government Gazette 16193 of 27 January 1995) declaring unlawful any agreement whereby a person cedes to any person charges, sets off against any debt or alienates in any other manner, his right or title to any claim against the Guardian’s Fund. Any person is prohibited for instituting a claim in any Court of law based on such an unlawful agreement. Therefore, if money is claimed on behalf of a person / institution by a trading agent the fund must still be made payable to the person / institution reflected in our records.

Trusts

A trust is a fiduciary relationship in which a trustor gives a trustee the right to hold title to property or assets for the benefit of a beneficiary.  

Yes.

Inter Vivos trusts and Mortis Causa trusts.

A Mortis Causa trust is a testamentary trust.  It is set up as per the terms of a deceased’s will.

An inter vivos trust is a trust is set up by the founders during her/his/their lifetime.  

Trusts are registered at The Master’s Office and normally holds at least one asset.  It is registered in the area where majority of the assets are held.  All trusts has to be registered for income tax, taxed at 40%.

Trusts

A trust is a fiduciary relationship in which a trustor gives a trustee the right to hold title to property or assets for the benefit of a beneficiary.  

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