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My husband sadly passed away in August. We had a two year…

My husband sadly passed away...
My husband sadly passed away in August. We had a two year old daughter and he has two adult sons from a previous mariage. He left his entire estate to me which consists if our home and a claim against a trust subject to the sale of a factory. we were able to pay off all our debt when he was diagnosed with cancer in May. I am currently not employed. My husband intended for me to invest claim amount and live of the interest. However-turns out we would not be able to get market value for the sale of the factory. His son has taken out a loan against the factory for a certain amount-against my husband's wishes, as far as I know in his personal capacity. This would mean after the sale of the factory the bank loan needs to be repaid and I would be etitled to the balance-after transfer fees- which means I'll only get out half the amount mentioned in the claim. I have also not been paid the rental income from the lease of the factory. His son's attitude is that we need to cut our losses. My question is: why would my claim be at stake when he got a loan against the factory. would I be able to hold him responsible for the difference. even if I do go back to work I would struggle to support my daughter.
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Answered in 1 hour by:
11/15/2017
Freddie Lombard
Freddie Lombard, Attorney
Category: South Africa Law
Satisfied Customers: 2,813
Experience: Practicing attorney and conveyancer with 16 years post article experience.
Verified

Hi I'm Freddie,

Welcome to Just Answer. Thank you for your question. I am reviewing it now and will post a reply here ASAP.

Regards

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OK, there are a number if issues here, and I would advise that you get the assistance of an attorney in your area as soon as possible.

From what you say, the factory is registered in the name of a Trust, and your husband had a loan account against the Trust, which loan account you now inherited.

This means, that the trust now owes you an amount of money. If the factory is sold for less than the loan account, that does not mean the rest of the loan is not due and payable by the trust, however, the problem lies in the instance where the trust does not have additional assets/income to cover the balance of the loan now due to you.

On the other hand, if the son borrowed money against the factory without the proper approval and resolutions signed prior to such a transaction by ALL the trustees, then such a loan would not be enforceable against the trust, and the bank will have to look to the son for payment of the loan, and not from the trust.

I hope this answered your question.

I know it will take an extra minute of your time to rate my service, but if you do not rate it, I do not get paid by the website so I would really appreciate it if you would be so kind as to rate my service positively. Feel free to ask further questions here on this topic at no extra cost if you need more information.

Regards

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Customer reply replied 8 months ago
Hi Freddie,His son claims there is a document stipulating that my claim is only against the sale of the property. Let us assume this is the case, how would this change the situation.
There are other assets in the trust.
I've been trying to get information out of the attorney my husband appointed as executor of his will, but with little sucess.Regards,
Moreen

Well, two things here

Firstly, if the attorney is not giving you information you ask for, report him/her to the Law Society.

Secondly, let the son produce the document - he cannot just claim it exists. The loan cannot really be just against the property (factory), it will be money that the trust owes to your husband's estate, and consequently now to you.

Regards

Freddie Lombard
Freddie Lombard, Attorney
Category: South Africa Law
Satisfied Customers: 2,813
Experience: Practicing attorney and conveyancer with 16 years post article experience.
Verified
Freddie Lombard and 87 other South Africa Law Specialists are ready to help you
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Thank you so much for the positive rating. I hope I can be of assistance to you again in the future.

You may request me personally.

http://www.justanswer.com/law/expert-fwlombard1/

Regards

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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