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ANC amendments estate compliance becomes important when spouses change their marital regime, such as moving from an ante-nuptial contract with accrual to one without accrual.
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An ANC amendment generally requires the consent of both spouses and a court application. Once approved, the amendment takes effect from a specified date. This date can become important when one spouse dies and the deceased estate is administered.
Property and financial rights arising before the amendment may need to be considered under the previous marital regime, while the amended regime may apply from the effective date onwards. The executor must therefore review the court order, original ANC and amended agreement carefully.
Why ANC amendments estate compliance can become complicated
The executor may need to determine how the amendment affects the surviving spouse’s rights, accrual calculations and the distribution of estate assets.
According to Tasneem Mahomed, director at Engelsman Magabane Incorporated: “ANC amendments create estate compliance complexity. Years after an amendment, survivors forget the change occurred. Then during estate administration, we discover conflicting ANC regimes for different asset categories.”
The Liquidation and Distribution Account should clearly explain:
- The original marital regime
- The date and terms of the amendment
- How the surviving spouse’s rights were calculated
- How the amendment affects the estate distribution
The executor should obtain the original ANC, the amended agreement, the court order approving the amendment and records relating to important assets and liabilities.
Statutory estate notices
An ANC amendment does not remove the estate’s statutory publication obligations.
The executor must still publish the notice to creditors required under section 29 of the Administration of Estates Act. Where applicable, the section 35 notice relating to the Liquidation and Distribution Account must also be published.
However, ANC amendments estate compliance may affect the information and calculations contained in the estate documents supporting those notices.
Communication with beneficiaries
Beneficiaries may challenge a distribution if they were unaware that the spouses had amended their marital regime.
The executor should be able to explain the effective date of the amendment and provide the documents supporting any accrual claim or distribution calculation. Clear communication can prevent unnecessary objections and delays.
An amendment made shortly before death may attract additional questions from beneficiaries. Although ANC amendments involve a court process, disputes can still complicate the administration of the estate.
Review the deceased’s will
The deceased’s will should also be reviewed carefully. A will drafted before the ANC amendment may contain provisions based on the previous marital regime. The amendment does not automatically invalidate the will, but inconsistencies may require legal advice.
For effective ANC amendments estate compliance, spouses should update their wills after changing their marital regime and keep copies of all court orders and agreements in a secure, accessible place.
Publishing deceased estate notices
Estate administration is deadline-driven and document-sensitive. Every notice must contain accurate dates, estate details and statutory information.
Legal Notice Publishing handles the publication of deceased estate notices in Nuusflits and the Government Gazette.
For assistance with estate administration advertisements and Government Gazette publication, contact:
Email: estates@legalnotice.co.za
For legal advice, contact Engelsman Magabane Incorporated:
Phone: 053 832 8134 or 053 832 8135
Email: admin@engelsman.co.za
This article was written by Engelsman Magabane Incorporated and forms part of the Estate Matters series on Legal Notice Publishing. It is intended for general information only and should not be relied on as legal advice. Readers who require advice specific to their circumstances can consult Engelsman Magabane Incorporated directly.
