Asked by the Customer on 03-11-2014 10:36:14
Question posted in the General Law category relating to Gauteng
Question posted in the General Law category relating to Gauteng
I married my second husband a year ago but up until now he has not revised his will. Most of his assets are in a trust fund wherein I am not one of the beneficiaries. When we married he insisted I resign from my employment with the result I am solely financially dependent on him. He has mentioned that I would have lifelong use of our home but nothing in writing. The financial upkeep is my concern as well.Where do I stand in the event of his untimely death?
Message from the Attorney
Posted by Att. Patrick on 03-11-2014 10:56:39
Hi there and thank you for your question,
If most of your husband's assets are vested in a trust, and you are not a beneficiary of that trust, then you won't be able to look to the trust to assist you if your husband passes away or divorces you. The trust is a separate legal entity and can own (hold) assets in its own name. Most people keep their assets in a trust to protect the assets should the person fall on hard times.
Even if you become a beneficiary of the trust, there is nothing stopping your husband (as the trustee) to remove you as a beneficiary if you go through a divorce. That's just a risk that you'll take.
You need to separate what could happen if he dies, versus what could happen if you divorce.
You should push him to update his Will and give you a lifelong usufruct over the property. He is your husband, and if he genuinely wants to look after you then he needs to make a plan.
There is of course nothing stopping him from updating his Will, and telling you, and then making a new Will a week later and not telling you about that.
If your husband passes away, you would have a legal claim against his estate for maintenance. But, that claim would be limited to what the estate could actually afford to pay. If he doesn't have any assets in his estate, then you could have the biggest claim in the world but the estate won't be able to meet it.
Also, if the house is registered (held) in the name of the trust, ideally what you would need is for the trust to give you a lifelong usufruct over the property. This is because only the owner can give a usufruct. If he is not the owner, his Will can state anything he wants but if it can't work legally, it won't work.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
If most of your husband's assets are vested in a trust, and you are not a beneficiary of that trust, then you won't be able to look to the trust to assist you if your husband passes away or divorces you. The trust is a separate legal entity and can own (hold) assets in its own name. Most people keep their assets in a trust to protect the assets should the person fall on hard times.
Even if you become a beneficiary of the trust, there is nothing stopping your husband (as the trustee) to remove you as a beneficiary if you go through a divorce. That's just a risk that you'll take.
You need to separate what could happen if he dies, versus what could happen if you divorce.
You should push him to update his Will and give you a lifelong usufruct over the property. He is your husband, and if he genuinely wants to look after you then he needs to make a plan.
There is of course nothing stopping him from updating his Will, and telling you, and then making a new Will a week later and not telling you about that.
If your husband passes away, you would have a legal claim against his estate for maintenance. But, that claim would be limited to what the estate could actually afford to pay. If he doesn't have any assets in his estate, then you could have the biggest claim in the world but the estate won't be able to meet it.
Also, if the house is registered (held) in the name of the trust, ideally what you would need is for the trust to give you a lifelong usufruct over the property. This is because only the owner can give a usufruct. If he is not the owner, his Will can state anything he wants but if it can't work legally, it won't work.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Answer Accepted
This answer was accepted on 05-11-2014 07:31:46
Message from the Customer
Are the estate and trust 2 separate entities? In other words no claim can be made against the trust for maintenance if I am not a beneficiary? Would a legal document instead of a revised Will be more advisable?
Message from the Attorney
Posted by Att. Patrick on 04-11-2014 11:18:29
Hi again,
Are the estate and trust 2 separate entities? --> Yes, they are completely separate.
In other words no claim can be made against the trust for maintenance if I am not a beneficiary? --> Exactly. Even if you were a beneficiary, you would not have a claim against the trust for maintenance. At best, you would be "entitled" to receive money from the trust, but you wouldn't have any legal right or claim.
Would a legal document instead of a revised Will be more advisable? --> Not really. Ideally you should be included as a trustee of the trust, and a beneficiary of the trust. In that way you could vote (as a Trustee) to give money to yourself (as beneficiary)
Remember, a Will can be changed at any point in time - so you can't really rely on it.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
Are the estate and trust 2 separate entities? --> Yes, they are completely separate.
In other words no claim can be made against the trust for maintenance if I am not a beneficiary? --> Exactly. Even if you were a beneficiary, you would not have a claim against the trust for maintenance. At best, you would be "entitled" to receive money from the trust, but you wouldn't have any legal right or claim.
Would a legal document instead of a revised Will be more advisable? --> Not really. Ideally you should be included as a trustee of the trust, and a beneficiary of the trust. In that way you could vote (as a Trustee) to give money to yourself (as beneficiary)
Remember, a Will can be changed at any point in time - so you can't really rely on it.
If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick
Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.
If you would like to view the entire answer, you will need to either login or register a FREE account.