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Sections 9HA and 25 – Death, taxes and cashflow woes

If you ever had cash flow woes during your lifetime, know that your death might make it worse….

The fairly recent introduction of sections 7C and 9HA of the Income Tax Act accompanied by the amendment to Section 25 of the Income Tax Act necessitates proper estate planning by well-informed advisors.

Estate planning and administration of estates by advisors who do not take cognisance of the provisions of these sections could result in adverse tax consequences and cash flow woes for your estate.

  • Section 7C affects interest free loans to Trusts and companies held by Trusts and requires careful planning in setting up Trusts or transferring assets to Trusts. Proper understanding of the provisions of the section is therefore crucial;
    • For instance – the bequest of a loan account which is subject to section 7C to an heir may result in the loan inherited by the heir, still being subject to the provisions of section 7C;
  • The provisions of section 9HA provide that the deceased is deemed to have sold his assets to his estate at Market Value as at date of death. Depending on the nature of the assets, this may result in Income Tax or Capital Gains Tax being payable by the estate and can cause cash flow issues for the estate. Proper planning by knowledgeable advisors can mitigate some of the adverse consequences mentioned above.
    • Depending on the provisions of the will, the residuary heir might be saddled with the tax burden as well as administration costs that are levied on assets inherited by a legatee. Careful planning and drafting are essential.

Choose an advisor that has the necessary expertise and experience, thereby ensuring that you receive the best advice when drafting your will or dealing with your estate planning.

Your will is the most important document that you will draft in your lifetime, dealing with everything you accumulated during the course of your life – it deserves – expert attention.

In a well-known Appeal Court case, the court made the following observation:

“It is a never-ending source of amazement that so many people rely on untrained advisors when preparing their wills, one of the most important documents they are ever likely to sign.”

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

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