Discretionary Living Trusts A legacy for generations

Written by Trust Specialist, Mervin Messias, it is the culmination of knowledge and expertise that has been acquired over many years’ study and practice of Trust law.

The author recommends the use of Trusts as part of estate planning because they provide solutions to many potentially complicated problems related to asset protection, succession planning, and disability protection. Many little-known benefits of Trusts are revealed to help protect your hard-earned wealth for generations to come. A Trust circumvents the whole process of winding up an estate, together with its potential delays, hassles and frustration.

In fact, a Trust deserves pride of place in any estate plan. It means business as usual, even after death, with no executor, executor’s fees or estate duty.

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    Let’s explore some important points when it comes to a will. Anything bequeathed in a will only becomes a reality when you die. A will cannot help, or benefit you. Of course, a will can be amended to accommodate any changes in circumstances while you are alive and in full possession of your faculties. This is done either by preparing and signing a codicil or revoking the existing will and drafting a new one to provide for the changes.
    Some of the reasons why it could fail you and your beneficiaries:

    • It is a rigmarole because it is required to comply with the Wills Act 7 of 1953.
    • If you are no longer mentally competent when you sign the codicil or revised will, it might be declared invalid. What then? Or, a will can be declared invalid on a seemingly insignificant technicality – it may have been witnessed by someone legally disqualified to do so.
    • It cannot be amended after you die.  The executor, the estate and the heirs will find themselves in serious straits if the original will cannot be found when you die.
    • It makes no provision for unanticipated calamities, like rehabilitation costs following a road accident (insurance policies are clause-heavy and limited in cover).
    • A will is a public document. Anyone can request a copy and become a party to your business post mortem, especially if that someone has a vested interest in contesting it. Think drama, dissention, time delays, court costs…
    • The heirs only inherit what is left after all liabilities (debts and taxes) have been paid.
    • It is of no benefit to you while you are alive.
    • You could be worth more dead…


    This trust is a legal mechanism that is able to benefit you, the very person who toiled to accrue a nest egg for your family when you die. Ever wondered whether there was a way to enjoy more of the fruits of your labours while you are alive? There is a way, here’s how…

    • Access to assets in a discretionary living trust may be available to you during your lifetime.
    • The trust deed may be structured to permit amendments by the trustees after the founder’s death.
    • A trust is a living legal entity so unlike a will, it comes into existence on signature and functions as soon as the trust deed has been registered and the nominated trustees have received their Letters of Authority from the Master of the High Court.
    • Assets held in a trust are protected from attack by your creditors, your succession plan is secured and you are protected should a mental or physical disability become your reality.
    • Assets in the trust are invested and managed for growth by the trustees – you can be a trustee and invested in the process if you choose to do so.
    • Beneficiaries have a contingent right to the assets – they can forget about squandering what you have toiled to create because any distributions are at the discretion of the trustees.
    • It has to be set up by a Trust Specialist so that it is sufficiently comprehensive to achieve all your objectives in life (for yourself and your family), and to keep the benefits flowing without interruption when you die. Yes, it also circumvents the entire estate winding-up process!

    There is so much more to your legacy than a will. Explore the possibilities!



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