Why a separate will for non-SA assets?

With the ongoing steady relaxation of exchange controls in SA, you probably have some assets outside the country by now or are contemplating using your foreign investment allowance to diversify and externalise some assets.

Examples of non-SA assets include equities listed on exchanges in foreign countries; shares in unlisted foreign companies; offshore bank accounts; loans made by you to non-residents; immovable properties situated in other countries; foreign unit trust funds and other investments held in foreign countries.

As a general rule, it is not advisable to deal with these foreign assets in your SA will for the following reasons:

  • Heirship laws – The jurisdiction within which your non-SA assets are situated might have forced heirship laws, which could render bequests of these assets in your SA will invalid;
  • Time-consuming paperwork process – When dealing with non-SA assets in your SA will, your executor has to obtain sealed copies of your will, letters of executorship and a death notice from the Master of the High Court in SA before he can deal with the non-SA assets in any way. This process can take up to 12 months, during which time the non-SA assets will be frozen and cannot be sold, transferred or dealt with in any way by anyone. When you have a separate will dealing with the non-SA assets, this process is not necessary.
  • Legal terms differ or are unknown – SA laws are largely based on Roman Dutch law, with some English law influences. As such, we use legal terminology in our wills that is not known or does not exist in some other foreign legal systems.  Obtaining legal interpretations of legal terms like this in foreign jurisdictions before the assets there may be dealt with can be costly and time consuming.
  • Translations may be required -You will may be drafted in one of our local vernacular languages, for instance  Afrikaans or Xhosa, and thus would need to be formally translated into the language of the country in which the assets are situated.
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