FACTORS TO CONSIDER AT DEATH

If you have a **Living Will – please ensure your medical practitioner has a copy of these documents on record.

** A Living Will is not a will but rather an instruction to your family and medical practitioner advising that you do not want to be kept alive by “machines”.

It is important to keep a file ready with the following documents.

• Contact details for Attorney, Financial Advisor, Auditor and/or Tax Consultant.
• Contact details for Medical Practitioner and Vet.
• Original, signed Will.
• Letter of Wishes.
• Birth Certificate.
• Marriage Certificate
• Antenuptial Contract (if applicable).
• Funeral policy.
• Life Insurance Policies.
• Short Term Policies.
• Investment Policies.
• Unit Trust Investment Certificates.
• Vehicle Documents.
• Details of Property/ies.
• Current and investment accounts with Banks.

Transportation of the body & obtaining a Death Notice.

One needs to have the deceased moved to a suitable mortuary and acquire a Death Notice/Notification of Death (cause of death) also known as the BI-1663 Medical Certificate.
The death notice referred to here is not the ‘Death Certificate’ from Home Affairs.

The next of kin need not wait for the Death Notice (BI-1663 Medical Certificate) to be issued, your funeral director will usually take care of this detail for you.

• If a person dies in hospital of natural causes, the doctor will issue a death notice. Many private hospitals do not have mortuary facilities, in those cases a funeral director needs to be contacted immediately to collect the deceased. State Hospitals generally have mortuary facilities, the body must remain there until a death notice is issued.

• If a person dies in hospital of unnatural causes, the body will need to be transferred to a state mortuary for a compulsory post-mortem (autopsy). The state mortuary will then issue a death notice.

• If a person dies at home of natural causes, one should contact the doctor first. Provided the doctor is willing to issue a death notice one can contact a funeral director to transport the deceased to a mortuary. A death notice can be obtained from the deceased’s doctor if the doctor had seen the deceased within 24 hours of their death or within a reasonable time whereby the doctor is assured of the cause of death. If the doctor is unwilling to sign the death notice a funeral service will arrange for a private autopsy to be performed to ascertain the cause of death. The death notice will then be issued by the pathologist at the mortuary where the autopsy was performed.

  For those who have died of natural causes at home and do not require an autopsy there is a further requirement if they are to be cremated. A second doctor needs to examine the body to confirm that there is no reason why the body cannot be cremated. Both doctors need to sign cremation forms which are then handed to the medical referee at the crematorium who will then give the final permission for the cremation to take place. Please state clearly in your Will that it is you wish to be cremated.

• If a person dies at home of unnatural causes, one must contact the police. The police will organise removal of the body to a State Mortuary where a compulsory autopsy will be performed, and a death notice will be issued.

Please note: In all the above cases the body is to be identified by a relative or friend before the death notice can be issued.

Identifying the Deceased

Anyone who knew the deceased can do the identification, provided they take both their own and the deceased’s identity books or passports to the mortuary when identifying. They will need to obtain a mortuary/body number from the mortuary staff.

If the Deceased is an Organ Donor

Organ Donation should not delay funeral plans, as organs need to be removed as soon as possible after brain death to ensure a successful transplantation. Support systems are maintained until organs have been removed. Death of the organ donor is defined by the time of certification of brain death, not by withdrawal of support. Brain death must be certified by two independent doctors before organs/tissue can be removed. According to the National Health Act of 2003 organs/tissue cannot be removed unless the family gives permission.

For more information on organ donation, including emergency numbers, etc, visit the Organ Donor Foundation website. Alternatively call the Organ Donor Foundation Toll Free on 0800 22 66 11. Transplants save lives.

Whole Body Donation

Donating your body to science contributes towards the training of tomorrow’s health care professionals and surgeons. Various universities around the country need whole bodies for medical studies. There is an urgent need for bodies, and they are only able to accept bodies in a certain condition, so please check to find out what the conditions of body donation are, and where you can donate your body to assist with the improvement of medicine and surgery in South Africa.

Planning a Funeral

A funeral service is not a legal requirement in South Africa. However, it is customary to have an ‘end of life ritual or ceremony’ to commemorate the life that has passed. When planning a funeral, all decisions should be made in terms of a persons will.

Try to ascertain what kind of funeral the deceased would have preferred – burial or cremation. The responsibility for funeral arrangements and determining the deceased’s last resting place normally falls on the closest next of kin or persons named as heirs in the deceased’s will.

For legal and health reasons it is not recommended that one attempt to carry out the job of an undertaker oneself. The services of a funeral director/undertaker are required for transport and sanitary storage of the body. Funeral directors’ valuable knowledge in handling home affairs and their experience with the various funeral arrangements can make things a lot easier for families.

In certain instances, the deceased may already have been removed from the scene. It is acceptable to select a different funeral director to continue with the arrangements from this point onwards. Members of the NFDA and other funeral bodies have reasonable standardised rates for removals, so changing funeral directors should not affect the amount you pay for the funeral service. It is important to know that it is your right as a consumer to select the funeral director who best suits you, whether it is based on price, religion, or any other factor.

Funeral Checklist
What to take with you to a Funeral Parlour?

• A copy of the deceased’s Identity Document.
• Next of kin’s Identity Document.
• Funeral Policy – (if there is one).
• Marriage certificate (this is required by the insurance company if you have a policy).
• A photo of the deceased for hymn sheets.
• Clothes – for the deceased to be dressed in.

Obtaining a Death Certificate

Obtaining a death certificate is vital to administer a deceased estate. The Births and Deaths Registration Act requires every death to be reported to the Department of Home Affairs. The death notice obtained from the doctor/pathologist needs to be handed in at Home Affairs. Home Affairs will then issue a Death Certificate approximately two weeks later. This detail will usually be handled for you by your funeral director.

The Executor needs to take several copies of the Death Certificate to a police station along with the original, to be stamped and certified by the police. Every instruction given and transaction done on behalf of the deceased e.g., closing accounts etc, will need to be accompanied by a certified copy of the death certificate.

Establish Who the Executor of the Estate is

• If the deceased had a will, they may have nominated an individual or a financial institution to perform the function of the executor of the estate.
• If no executor is nominated or the nominated executor is unable or refuses to accept the task, or if the person dies intestate, the master of the High Court will appoint an executor to the estate, this is called an Executor Dative. Those who want to take on the role of the executor should apply to and must convince the Master of the High Court why they should be appointed. The Master generally prefers an executor who stands to inherit from the estate, and the primary beneficiary is preferable. All beneficiaries of an estate are asked to consent to the new executor, if there is a dispute, the master may appoint joint executors.
• If you have been nominated as the executor of an estate and you feel intimidated by all the legal processes you are advised to approach a professional, such as an attorney or an accountant to assist you in administering the estate.
• Executor’s fees are 3.5% of the gross value of the assets in the estate and 6% commission on interest which accrues after the date of the death. If you are the nominated executor, it is possible to negotiate this fee with accountants and attorneys. All legal fees, executor’s fees, Master’s fees, etc. will be paid out of the estate.

Executor’s Duties

The executor needs to apply to the Master of the High Court to be formally appointed and granted the necessary powers to administer the estate. This can take up to six weeks, depending on which of the nine Masters’ Offices in South Africa is involved. It is best to go in the morning, and take the following documents with you:

• The original will, (it is advisable to get a receipt when you hand it over).
• The death-notice.
• An inventory.
• A certified copy of the death certificate.
• An acceptance of trust form, in duplicate.
• A next of kin affidavit.
• An affidavit that the estate has not been reported to another master’s office (required by some).
• A list of creditors.
• Estates FAQ.

Which Master of the High Court office do I report a deceased estate to?

Where the deceased was resident in the Republic, the estate must be reported to the Master in whose area of jurisdiction the deceased was resident at the time of his/her death. At present there are master’s Offices in Pretoria, Cape Town, Pietermaritzburg, Grahamstown, Bisho, Umtata, Bloemfontein, Kimberley, Mmabatho/Mafikeng, Johannesburg, Polokwane, Durban, Port Elizabeth, and Thohoyandou.

Where the deceased was not resident in the Republic at the time of his/her death, the estate may be reported to any Master, provided it is reported to only one Master. An affidavit to the effect that the letters of executorship have not already been granted by any other Master in the Republic must accompany the reporting documents.

What does the law prescribe regarding executor’s fees?

Executor’s fees, by law cannot exceed 3.5 percent of the gross assets (before deducting debts or tax) of your estate, plus six percent of any income, such as dividends, rent or interest, which the executor collects on behalf of your estate before it is finalised.

Who pays tax on inheritance?

If SARS is satisfied that the income has been derived for the benefit of an heir or legatee, that person will be responsible for any tax liability; if the receiver is not satisfied that this is so, the income is deemed to be the income of the estate. The executor, as representative taxpayer, is liable for payment of any tax on the income, this tax will be paid by the estate.

The names, addresses, and where possible, the tax reference numbers of those benefiting from the estate will be required by the SARS.

Do I have to pay estate duty?

Estate duty is only payable in respect of an estate of which the net value is more than 3.5 million. However, if the estate goes to a spouse, then there will be no estate duty payable.

What if an heir cannot be located?

All money that the executor is unable to distribute in accordance with the accounts must be deposited in the Guardians Fund on behalf of those entitled to such money.

What if a valid claim is made against the estate after it has been distributed?

A creditor does not lose the right to claim even if the claim is not lodged within the specified period but may have to pay additional costs incurred by the estate in redrafting the accounts. If a legitimate claim is made after the estate has been distributed, the executor may have to pay the debt out of his own pocket. This would largely depend on whether the executor is at fault in any way, and if the estate was distributed in a way not provided for by law. If the executor is not at fault, the creditor can claim the amount from the heirs. If the amount that the heirs received does not meet the whole claim, the balance owing can be claimed from the legatees, provided this is done within three years of the date of death.

Can my spouse continue to use our bank account when I die?

Assets are frozen when estate administration begins, and this can have serious implications for dependents. A spouse married in community of property will have no access to funds in the combined estate until the executor is sure the estate is solvent, so it may take some time before the spouse can access any cash. To avoid this, one can take out a life insurance policy in favour of your spouse or other dependents. Such policies pay directly to the beneficiaries named in the policies, often within days of the insurance company receiving the necessary information.

If your death is foreseeable, due to ill health, transfer a sum of money to your spouse or dependents.

When am I advised to get a lawyer regarding winding up an estate?

It is advisable in most instances to use a lawyer or accountant. Seek advice if you have any doubt on the proposed charges. Always ask for a fee-based consultation and if you have doubts about the person you are using, get a second opinion.