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Josh-2010
Josh-2010,
Category: South Africa Law
Satisfied Customers: 24527
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I am a UK citizen and have a house in S Africa.

Customer Question

I am a UK citizen and have a house in S Africa. It is rented out as a holiday home for 10 months of the year and managed for me by a friend. We have no written agreement but this has been the situation since 2008. It is co-owned with my wife, also a UK citizen. I have a will in the UK but this property is not specifically covered in that will. I realise I should probably correct that but my question is what happens here if my wife and I were wiped out in a road accident, for example. I want to ensure that the property is able to continue normally as a holiday rental and it would be my intention to leave the property (which has a 50% bond) to my friend here. Are there any special considerations?

Submitted: 1 year ago.
Category: South Africa Law
Expert:  Josh-2010 replied 1 year ago.

Joshua :

Thanks for your question. Please RATE my answer when you are satisfied

Joshua :

Does your wife also have a UK will please?

Joshua :

Would you like to continue?

Customer :

Sorry, have been out all day. But I notice you are from UK Law whereas the advice I need relates to SA Law. We both have UK wills but I know we shall have to amend them when we get back because we have not specified any wishes regarding the S Africa property. My immediate concern would be that my friend who runs the property here in S Africa would suddenly find he had no access to the property and that the business arrangement that has existed her for the last 5 years would not suddenly stop. I had thought I would write a separate will relating only to my S African property (a copy of which would be attached to my UK will) want to be sure that

Customer :

contd ... (a copy of which would be attached to my UK will) but the S Africa will would be deposited with my Bank or other agent here, with the knowledge of my friend here, so that in the event of our joint deaths, there would be no confusion about the S A property. My wife's SA will contain the same terms and I understand the assumption that the older person is deemed to die first and the younger partners will then becomes the over-riding document. We also do not want to tell our friend that he will inherit the property.

Joshua :

No worries. Thanks. Just reading your posts...

Joshua :

Your UK wills, unless you specifically specify otherwise will effect your worldwide property including south African property. If you both died together the younger of you will be deemed to have died second.

Joshua :

If you wish to ensure that the property is left to a specific individual then you need to provide for the same in your UK will. This will take effect in South Africa although it is in your UK will.

Joshua :

Having said that many people who have foreign property choose to make a seperate will in the country in which that property is located. You can do this but should you do so take care to provide in your UK will that your UK will does not effect your SA property otherwise any subsequent UK will you make can override any will you make in SA previously and vice versa. Similarly your SA will if you choose to make one should declare that it only relates to you SA property or the same could possibly apply in reverse.

Joshua :

In terms of whether there are any legal implications in how to leave the property in SA as you say you would need advice from a SA lawyer as I am as an English lawyer. This site does have a SA section I think and you could consider posting a question in the SA section where one of my colleagues may be able to assist you.

Customer :

My concern has arisen because a friend here in a similar situation has advised me there can be problems relating to S African assets regardless of what might be specified in any UK wills. His concern related to liquidation of S African assets the repatriation of any funds to the UK, which is not directly a concern in my case, but I just need to be aware of all the potential snags to be sure I have thought them through. So it is a S African legal problem, not necessarily a UK problem, and I do have a solicitor in the UK who will advise me from a UK perspective.

Joshua :

I always advise my clients who own foreign property to take advice from a local lawyer in that country and consider whether to make a local will in addition to a UK will which wills cross refer to each other as above so as not to accidentally cancel each other out.

Customer :

Sorry we crossed, but my application was made to the SA section because the advice I wanted was specifically related to SA Law, so I was surprised that your reply came from the UK.

Joshua :

The reason for this is that some countries have succession laws which override ones will - one only has to look as far as France to find such a situation where it is very difficult not to leave your estate to your spouse and children regardless of what it says in your will.

Customer :

I also understand the traps that can occur with a secondary will taking over from the first and will take care of that back in the UK. So it is the SA specifics I need an answer to.

Customer :

Thanks for your help but can I get back to the S African site?

Joshua :

Looking at the information available on PLC SA laws allow full testamentary freedom which, in essence, permits a testator to freely dispose of the entirety of his estate, subject only to the law and public policy. There is no forced heirship regime. It also recognises UK wills

Joshua :

I suggest you post a question in the SA legal section where a SA lawyer will no doubt be able to give specific assistance on SA law. If you have any difficutly posting a question in that section, customer services will be pleased to help. Sorry if you did not mean ti post in the UK section.

Customer :

HI Joshua, I have been asked to rate your service and as far as your response is concerned, it was excellent. However, I have not learnt anything I did not already know since it is only the SA aspects that I need information on and my original enquiry was directed to the SA site. So, I am not a satisfied customer althought that has nothing to do with you. Thanks for trying anyway! Rgds etc

Josh-2010,
Category: South Africa Law
Satisfied Customers: 24527
Experience: 
Josh-2010 and 2 other South Africa Law Specialists are ready to help you
Expert:  Josh-2010 replied 1 year ago.
Thanks for your feedback - I am sorry that you are not satisfied and I quite understand your comments. Would you like me to ask customer services to assist you with listing a question in the South African section? I do not have any real contact with South African lawyer colleagues on this site but I would hope there would be someone that could assist you.
Customer: replied 1 year ago.

Hi Joshua, that sounds like an excellent suggestion and I am confident there will be someone there to help because I did research a few replies before completing my application. As I recall events,having made my payment (Paypal UK a/c) I was ended up on the UK site and I did not see any obvious way to extricate myself and get back to the S African site. You might like to feed that back somehow. The fault might have been mine but I am quite computer savvy and would be surprised if it had been. Rgds etc.

Expert:  Shaie Zindel replied 1 year ago.
Hi There - I can confirm that in respect of the SA property a foreign will would be interpreted according to SA Law. My advice would be to execute a codicil to your current will that will provide for your wishes in respect of the SA property. You can execute same in the UK and then simply send a copy to your SA friend to hold. In the event of your passing and that of your wife, the Estate would be reported to the Master in SA and effect would be given to that portion of your respective wills that deal with the SA property. Of course the one issue I foresee arising would be taxation of the Estate, You will be expected to pay Estate Duty in SA on the property so just make sure that your financial affairs are also in order. Let me know if you need more info. Regards
Customer: replied 1 year ago.

Hi SA-TOPLAW, Many thanks to everyone for picking up on my need for SA info! Your answer makes things fairly clear and I shall do what I can whilst I am here to do what has to be done at the SA end.


 


Just one question, and you might not be the right person to answer, but my estate will be liable to UK estate duty on its combined worldwide value, of which the first £300k or so is exempt. There may also be an exempt portion in SA, do you know how much that normally is?


 


Would it then be that SA Revenue will take what they require subject to any exemptions, and as far as UK Revenue is concerned, my UK estate duty debt is then credited with whatever payment has already been made in SA. Kind of a Witholding Tax arrangement?


 


Regards etc

Expert:  Shaie Zindel replied 1 year ago.
Hi again - In SA the duty free portion is the net asset value under R3.5m. You would be taxed in the UK as your primary residence and also in SA if the property is valued at over R3.5m but I am sure the tax treaty should apply and therefore either way I think you should be ok. I hope this helps? Regards
Customer: replied 1 year ago.

Hi SA-TOPLAW, many thanks for the reply, that is all now fairly clear and I shall take steps to get things organised here before I return to the UK. Just one small thought, this whole thing arose because I was concerned about the situation where my wife and I were both wiped out in a joint accident. In UK law, the younger partner is deemed to have outlived the older, therefore that will is over-riding. I presume the same applies here?


 


Other than that, I am perfectly happy with the responses I have received so many thanks to both of you. Regards etc

Expert:  Shaie Zindel replied 1 year ago.
In SA there is no such provision. You would be deemed to have died together. To be safe maybe just execute a further will in SA to deal only with the SA asset.
Customer: replied 1 year ago.

Many thanks for your prompt reply, no further questions! Rgds etc

Expert:  Shaie Zindel replied 1 year ago.
Happy to help please remember to rate my service. Regards

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