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A will could be your shrewdest investment

If you want your nearest and dearest to really benefit, then it pays to examine all the options available

HERE are some of the most common mistakes in estate planning, and how you can avoid them:

  • Failing to take action every year to reduce the size of your estate on a tax-free basis.

    Even wealthy people may be reluctant to give away some of their assets while they're alive, even though they have more than enough to maintain their comfortable lifestyles.

    The result could be that the state ends up as their biggest single beneficiary.

    Anyone who feels the need to plan his estate should make maximum use of the annual donations tax exemption.

    The present concession is R25 000 per donor.

    This means that a married couple can give away up to R50 000 a year, to their children for example, without either them or the recipients having to pay any tax.

    Such tax-free donations may be made directly to beneficiaries, or to trusts from which they do, or will, benefit.

    Over a period of (say) 10 years, with donations of growth assets or of cash invested in growth assets accumulating at (say) 20% a year, tax-free annual gifts of R50 000 would build into more than R1-million.

    If you choose to donate assets rather than cash, pick those that are likely to appreciate in value to lessen future appreciation in the taxable value of your estate. But don't give away assets that are intended to provide you with an income, or inflation protection of such income, for the rest of your life.

  • Failing to make a will. Many neglect this fundamental necessity because they don't want to think about the inevitability of death. This selfishly ignores the interests of the living who will (or should) inherit.

    Others can't be bothered because they don't think they will leave much of value; yet many have "hidden" assets such as pension rights.

    Everyone should leave a will, even if it simply leaves everything to a spouse or a child.

    It need cost you nothing if you go to a bank or trust company.

  • Failing to realise the limitations of a will.

    Contrary to popular belief, you cannot always use a will to dispose of all your property, even if you do want to leave it all to a cats' home.

    For example, your spouse or even an ex-spouse may have rights to part of it, depending on how you are married, the terms of a divorce, and so on.

    A will is not an appropriate document to guide administrators of any trust you may create as to how they should manage its capital and distribute its benefits.

    A letter of wishes - which, unlike a will, is not a public document - is more suitable.

  • Leaving everything to your spouse to save taxes. It's true that what you leave to your married partner is fully exempt from estate duty, but it will be taxed fully on her/his death if that estate exceeds the limit, at present R1-million.

    If you are likely to leave a substantial estate - more than R2-million under the existing estate duty regime - it makes more sense to bequeath your first million, which will enjoy your exemption, to others such as children, perhaps through a trust administered by your spouse, and only the balance to her/him.

    That way the family eventually enjoys a double exemption.

  • Placing all your faith in a trust. A living or "inter vivos" trust has been described as "the hallmark of most modern estate plans", as it can be used to freeze or peg the dutiable value of growth assets cheaply, easily, flexibly and conveniently.

    But the trust deed should be carefully worded to cope with hostile tax reforms in future.

    The Margo Commission recommended that the assets of inter vivos trusts should be taxed periodically (such as every 15 years), while the Katz Commission has recommended an annual "presumptive tax" on such trusts.

  • Not keeping your will up to date. Estate planning doesn't end the moment you sign your will.

    Your financial position will almost certainly change within two to three years, and tax laws may change radically.

    Births, marriages, divorces or deaths may alter the dispositions you wish to make.

    Your own marriage, divorce or the birth of a child will certainly require some radical changes.

    So review your will at least once every three years, or whenever there's a substantial change in your finances or family situation.

  • Changing your will by codicil. As such a written amendment to a will must be executed with the same formalities as the will itself - witnesses, signatures and so on - it doubles the chances of a mistake or misinterpretation.

    It's much better instead to have a new will drawn up, based on your old one.

    Costs, if any, should be minimal.

  • Keeping your will at home. Wills, like other important documents, can be lost, stolen or accidentally damaged or destroyed.

    So leave the original with a lawyer, bank or trust company.

    Just keep a copy at home, if you wish. ¥ Martin Spring is editor of Personal Finance Newsletter.

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