An issue that is sure to cause a delay in the winding up of an estate is the issue of maintenance. Your obligation to maintain your minor children does not cease with your death. In fact, your obligation does not necessarily even cease when the child becomes a major at age 18 – it only ceases when that child becomes self-sufficient.

On death, maintenance claims must be resolved before heirs can be paid. If not sufficiently catered for they can result in heirs receiving less than the deceased wanted them to. It is therefore an issue that must be taken into account when doing an estate planning exercise.

You need to consider all the liquidity needs in your estate:

  • General debt (bonds, over drafts, HP agreements etc.)
  • Taxes – income tax (including CGT) and estate duty
  • Administration costs – Master’s fees and Executor’s fees
  • Maintenance claims

Only once these have been settled will the residue be available for payment to legatees and or heirs.

How do you calculate the value required to satisfy the maintenance claim?

  • What is the monthly maintenance that must be paid in terms of the divorce order?
  • Is there an escalation included, or is it CPI?
  • Is there a specified term it must be paid for?A good starting point is to do a financial calculation using the given factors to determine how much capital will be required. Remember that the capital will need to be invested in order to generate a return sufficient to provide an income.

    Be careful about using unrealistic growth assumptions on that capital, in order to minimise the need.

    Does the surviving parent (guardian), the custodial parent, have to accept the adequacy of the funding provided by the deceased and ear- marked to satisfy the maintenance payment?

    Simply, no!  She can contest the adequacy of the capital proposed and then the estate will have to pay for an actuary to calculate the sum required. While easier said than done, in an ideal planning world, it is advisable for the parties to discuss the quantum annually and to agree as to its reasonableness.

    This will prevent unnecessary delays when winding up the deceased estate.

    If you require more information on how to do the calculation or how to make provision for a potential claim against your estate, contact Kiba de Klerk at 023 342 5161 or send an E-Mail to kiba@audenberg.co.za

Posted by :Kiba de Klerk

with thanks to Liberty Legal Focus