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Can I leave my assets in my will to my family trust rather than to my children?
11 August 2020  | Ruurd Van Der Wal
As with all questions in law, each person needs to consider the facts and consequences before coming to a definitive answer.

It might be a very useful option to bequeath your estate to your existing Family Trust rather than to your children or the individual heirs.

Some of the reasons to consider the above would be:

  1. The heirs are still minors In such a case the minor’s inheritance should in any case be administered by trustees in terms of the testamentary trust in order to avoid having to sell the assets and transfer it to the Guardians Fund which is administered by the Masters Office. There is no reason why one should incur unnecessary costs administering the testamentary trust whilst you already have a Family trust which can be used for the same purpose.
  2. It is impractical or impossible to divide the assets between the heirs at the time of death You might have an asset such as agricultural property, that may not be divided without the prior consent of the Minster. In such a case the property can be bequeathed to the trust, for the trustees to utilize the property for the benefit of the people for which it was intended for.
  3. The heirs might not be in a position to be trusted with the full power and responsibilities the inheritances bestow upon them, at this moment
Heirs who suffer from substance abuse or disabilities might benefit where a trusted trustee administers the assets on their behalf.

However, should you decide to make use of your family trust, you need to consider whether or not the trust deed is actually drawn up in such a way to make it possible to bring about the consequences you intended.

Here are some aspects to consider:

  1. Who will be the trustees of your family trust after your death?
    Could the remaining trustee’s interest be in conflict with the rest of the beneficiaries, will they be fair?
    Will the trustees be capable of administering the inheritance?
    What will the trustee’s fees be?
  2. Who are the beneficiaries of the trust?
    Will the trustees have the power to divest some of the inheritance to any other beneficiary in terms of the trust deed, that you would not have done in your will?
    How wide are the powers of the trustees? Is it a discretionary trust?
A person may not delegate to someone else, how his assets is to be inherited. Therefore, you cannot leave the decision of how your assets are to be divided, to the discretion of the trustees. Depending on the circumstances you might have to give specific instructions to the trustees and should not take it for granted that they know and will divide your inheritance between the beneficiaries as you intended.
Tags: Trust
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