A reader, who has reached a specified age to take ownership of her late father’s estate, wants to know how she should go about acquiring the property in her name.
Her father died 20 years ago, but she was only entitled to take ownership of the estate, including the fixed property, when she turned 25.
Although the reader has not confirmed that a trust was used to “house” the assets bequeathed to her by her father, it is highly likely this was the case.
If this did not happen her inheritance would have been paid into the Guardian’s Fund.
See the reader’s question here.
This is a fund established to hold and administer monies falling under the office of the Master of the High Court for, inter alia, minor beneficiaries in estates.
The funds are typically claimable upon reaching the age of majority.
Often a testator will make provision for minor beneficiaries by providing for a trust to be created upon death.
The provisions used to create a testamentary trust vary from the simple, which can be one or two lines, to more comprehensive conditions setting out the trustees’ powers.
As the trust is of a testamentary nature, the provisions will apply as they stand and, for the majority of practical purposes, could almost be regarded as unalterable.
Variation is possible by way of an application in the High Court but this could be prohibitively expensive.
For this reason it is important that proper advice be sought on what provisions should be included in a will and what they should contain to ensure the trust functions as intended.
In contrast, the testator may have made use of an existing or inter vivos trust, registered while still alive.
From the context of the reader’s question, however, it would appear that the trust concerned is of a testamentary nature.
Although it is possible that the reader had no need to access the funds of the trust through the years, and thus never corresponded with the trustees, they should have actively administered the trust.
The trustees could, perhaps, have corresponded with the reader from time to time, reporting on the assets, if not to her guardian, then to her directly when she reached the age of majority.
If the trustees are known to the reader she should obtain a copy of the will and examine its provisions in relation to the trust.
She may, for example, have the choice of agreeing to allow the property to remain in trust and to become a trustee, assuming this would be beneficial or desirous to her.
Should she prefer for the property to be transferred to her, she should formally inform the trustees, who will initiate the process of transferring it.
The trustees will usually begin with a resolution recording the beneficiary’s choice to have the property transferred to her.
They must take the steps necessary to effect the transfer, appointing conveyancing attorneys and the like.
The trust will usually be wound up following the distribution of all trust property.
If the reader does not know the identity of the trustees, the situation may become trickier.
Approaching the executor of her father’s estate may lead to the identity of the trustees appointed under the will.
The trustees may be natural persons or a legal person represented by natural persons.
If the reader cannot trace the executor of her father’s estate, she can approach the office of the Master with jurisdiction to secure a copy of her father’s will to identify who was nominated as trustees.
Copies of the letters of authority of the trust, obtained from the Master’s office, will also identify the trustees.
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