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MaryJane

Last Will & Testament

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MaryJane

Hi all

Morbid thoughts abound. I'm currently looking into having a last will and testament drawn up here in Canada. I was wondering if anybody could share an experience or give some advice.

I asked around and was quoted $350 a piece for an uncomplicated one if I go through a lawyer. Price seems a bit high but this was the lowest I could find at the moment.

I also found Axess Law, which are a cheaper option at about $99. But these are like walk-in lawyers.

And another cheap option are these online will kits. Although I feel they're a bit dodge. "What if something goes wrong" comes to mind a lot with these kinds of thing.

Personally I would like to go for the face-to-face lawyer route.

Is $350 reasonable for one will? (That will then be $700 for both hubby and I). If not, can anybody recommend lawyers in the GTA area who charge reasonable rates perhaps?

Another issue seems to be if you have international assets, etc. That seems to be covered in some other way.

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Andre1

I can unfortunately not assist with your Canada will situation, but can give some input on international assets.

The laws concering estates and asset transfers (including upon death) differ considerably from country to country. What I do here in SA is to set up seperate wills for different domiciles. So for a client who has assets in the UK and in SA we set up a will for the UK assets and another for the SA assets each being correct wrt the laws that govern their respective domiciles. I would strongly recommend that you speak to a lawyer or financial planner that has a good understanding of the Canadian laws as well as those of the other region where you have assets.

For that level of specialised advice I dont think $350 is a hefty price. The costs that you might incur if the planning is not done correctly could amount to thousands in taxes and fees.

In a year or two I can help you, but I'll need to set up my Canadian practice and study a whole lot about the Canadian laws before that happens... :) 

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debs

The $350 sounds about right to me. 

Hubby and I just did this in September, right before the birth of baby #3. We are in the GTA (Vaughan). The cost for a will and two Powers of Attorney for each of us was $720+HST. The PoAs were one for Property and one for Personal Care. We got $220 off because we used this same lawyer to notarize our gazillion documents when we dissolved all of our SA assets through CashKows earlier last year. So in terms of international assets, no clue, as we no longer have any.

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MaryJane

@Andre1

Thanks for the free advice ;)

Yep, as you said, I have been told about the separate wills in different countries scenario being better. I just got worried that if I were to do a will here that it would actually cancel the one I have in SA, and then I need a new one to cover SA assets.

@debs

Thanks for the info on rates. I shall scrape up some moonlighting monies to prep the $700 I'll need for the face-to-face lawyer then. All I can say is OUCH! :stretcher:

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Andre1

@MaryJane

No problem. You don't need separate wills 'in' different countries, but rather separate wills 'for' separate countries. So your one will can read for example 'My SA assets must be disposed as such...' the second 'My Canadian assets must be disposed as such...'

So you can have the same executor in both domiciles, especially if this is to be a family member, but then they need to handle the estates separately. Ideal is to have someone in the domicile area to be the executor though, a lot less travelling and couriering.

The problem with an existing will is that it will probably contradict your new will/s. It most likely reads 'All my assets...' which would cause problems. I would recommend that your new will/s do replace your existing will in SA even just to prevent such contradictions.

Good luck with this and take your time. These are big decisions...

 

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MaryJane

Thanks, Andre1!

i had a thought that that was the case with the assets.

To establish a new SA will though, don't I have to sign and date and have it witnessed while physically being in SA?

I had thought at one time to rather hand write the will (so I don't need witnesses) but a friend says this is not possible for an SA will. One of the key things that a Master of the High Court looks for validity of a will is by looking if it had been witnessed.

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Andre1

You do not need to be present in SA to sign and date the will. There are some formalities and they are explained here under point 16.

http://uk.practicallaw.com/4-513-6505#a192533

One point that they don't mention is that a person under 14 cannot sign as a witness and a person who is a beneficiary or executor or trustee etc of the estate or trust created can also not sign as witness. Another practical point is that the master will most likely require the original will and as such your will will need to be couriered or brought by the person appointed as executor.

For those who like doing things themselves, I've noticed that most forumites are such, here is a very basic website to help get your will right. http://www.legal-aid.co.za/selfhelp/?p=340

They also have a template that you can use http://www.legal-aid.co.za/selfhelp/wp-content/uploads/2015/02/Example-of-a-Single-Individual-Last-will-and-Testament.pdf

If you have a basic mix of assets in SA, this might save you a whole lot of $$. 

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kodacat

Can someone please help me with the following : My mother passed away in October 2016 as Canadian Citizen (she did not retain her South African citizenship) and  her last will was drawn up in Canada. She has a Non-Resident bank account in South Africa into which her pension was deposited and then transferred once a month to Canada, leaving a minimal balance. She has no other assets in South Africa.

The bank has refused to accept my affidavit of Executorship claiming the following (copied from an email) :

"We refer to the above matter and advise that this matter will be dealt with in terms of the South African Estate law. Therefore  in order for us to process payments from the above account,  we require a certified copy of the following documents pertaining to the estate:

  1. Death certificate
  2. Last Will and Testament
  3. First and Final Liquidation and Distribution Account
  4. Letters of Executorship ( issied by the master of High Court in South Africa)
  5. Power of Attorney and signed Executor’s certificate (if applicable)
  6. Executors ID
  7. Signed instruction to to settle the SARS invoice( the instruction must be signed by the executore of the estate apointed by the master of high court in South Africa)"

I agree with points 1, 5, and 6 but does the rest of it apply to a Canadian citizen?  Why does the Master of the High Court need to be involved? Three other institutions I have been dealing with have accepted the death certificate and affidavit of Executorship to proceed with death benefits, insurance payouts, etc. 

I am trying get her SARS taxes paid and then I would like to close the bank account but the bank is not co-operating.

Any advice would be appreciated.

 

 

Edited by kodacat

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MaryJane

I found a slightly different scenario but might help. https://www.cliffedekkerhofmeyr.com/en/news/press-releases/2011/administration-of-estates.html

It talks about being a non-resident in SA but having assets. A paragraph talks about the foreign executor (I guess this is you) needing authorisation from the Master of the High Court to be able to deal with the assets of the deceased non-resident.

 I'm not an expert. But I do hope this helps.

@Andre1 might be able to shed some more light regards this.

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kodacat

Thanks MaryJane - I will wait and see what Andre1 has to say should he see this

 

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kodacat

I contacted the Master of the High Court via email and in their reply, they say they will appoint an executor who resides in South Africa and then that person can also claim a fee from the estate!! 

"Kindly be advised that in terms of South African law, where a non-resident had passed on leaving assets in South Africa, the Master will only issue Letters of Authority should the total value of the assets in the estate be less than R250,000.00 or Letters of Executorship should the value of the assets in the estate be more than R250, 000.00, to a person who is permanently residing in South Africa.."

and 

"Certified copy of the power of attorney of an agent who is residing in South Africa who will be taking up the appointment"

I'm at my wits end!! - all i have left to do regarding my mom's estate is to pay SARS (which I can do from here in Canada) and then close the bank account in SA.

Edited by kodacat

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kodacat

Can anyone help with some information/advice on this topic please? 

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Merida

It seems like no one on this forum knows what to do either.

Edited by Merida

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Jules
3 hours ago, kodacat said:

Can anyone help with some information/advice on this topic please? 

Condolences on your loss.

Hopefully not a stupid question but if there's minimal money in the SA bank account, why don't you just leave it? I wouldn't bother stressing myself if I was in your shoes.

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Merida

Jules has a good point.  I think after awhile it will just become a dormant account and probably be closed automatically anyway (Nedbank):

Quote
  1. The bank shall be entitled, after written notification to the client, at its sole discretion to close an account which has been dormant for such a period as the bank may determine from time to time. The dormancy periods are as follows:

    1. 17.3.1  Savings products – 180 days

    2. 17.3.2  Transactor products – 180 days

    3. 17.3.3  Club accounts – 365 days 

Are you absolutely sure that there is even anything owed to the SARS? http://www.sars.gov.za/TaxTypes/EstateDuty/Pages/default.aspx

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kodacat

It is not the money - SARS also requires a Letter of Authorization from the Master of the High Court (they have to appoint an executor who resides in South Africa), in order to finalize my moms taxes. 

I just thought someone else has faced this problem.

I am trying get some information from lawyers in South Africa too. :( 

 

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MaryJane
4 minutes ago, Merida said:

Jules has a good point.  I think after awhile it will just become a dormant account and probably be closed automatically anyway (Nedbank):

Are you absolutely sure that there is even anything owed to the SARS? http://www.sars.gov.za/TaxTypes/EstateDuty/Pages/default.aspx

The link you provided states that the death needs to be reported to SARS regardless of whether estate duties are payable. SARS requires the name of the executor of the estate and I think the poster's issue is that the executor (himself/herself) is not a South African resident and needs authorization from / to be recognized by the Master of the High Court as the executor of the estate.

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kodacat

@Merida Thank you for the contact details.I will contact him and see what he has to say

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Hencolinde

I have read through the thread above regarding separate wills for SA & Canada. Am I correct when I say that I can have 2 wills in Canada, one referring to my assets in SA and one referring to my assets in Canada or can I have one will in SA(referring to SA assets) and one will in Canada(referring to Canadian assets)?

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FaithFUL

On the topic of wills.... for those that are in Canada with kids, but the kids Godparents are in SA: what is you plan of action with the kids should (heaven forbid) both parents die?

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GerdaT
57 minutes ago, FaithFUL said:

On the topic of wills.... for those that are in Canada with kids, but the kids Godparents are in SA: what is you plan of action with the kids should (heaven forbid) both parents die?

Goodness! Haven't even thought about this... suppose the kids will have to return?

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MaryJane
2 hours ago, FaithFUL said:

On the topic of wills.... for those that are in Canada with kids, but the kids Godparents are in SA: what is you plan of action with the kids should (heaven forbid) both parents die?

Your will will state that the godparents (legal guardians) are based in SA. The kids will go where the guardians are. I assume the guardians will need to take a trip to collect the kids.

Alternatively, choose guardians that are Canadian residents (not the godparents).

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MaryJane
2 hours ago, Hencolinde said:

I have read through the thread above regarding separate wills for SA & Canada. Am I correct when I say that I can have 2 wills in Canada, one referring to my assets in SA and one referring to my assets in Canada or can I have one will in SA(referring to SA assets) and one will in Canada(referring to Canadian assets)?

Hi Hencolinde,

From my understanding, both scenario will work. The important part is to classify the assets as SA or CA on the wills.

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FaithFUL
6 hours ago, GerdaT said:

Goodness! Haven't even thought about this... suppose the kids will have to return?

Or convince the godparents to come to Canada... I really wouldn't like the kids to come back to SA considering that we're doing this for them. But I suppose one doesn't have a choice if there is no family (or close friends) in Canada.

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