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In my experience as an advocate, one of the most intriguing – yet essential aspects of our legal framework – is estate planning.
On the surface, it looks so basic. Someone dies, leaves behind a fortune and beneficiaries share what is due to them. However, in the absence of proper planning, it is one of the most complex and exhausting aspects of the law because resolving an issue can take years, if not decades. Take this simple statistic.
At the end of the financial year on June 30, 2024, the judiciary’s total court case backlog in Uganda was 42,588. Of these, about 41.54 per cent are before the Family division of the High court. A case is considered backlog if it has exceeded two years in the court system before completion.
The figures would have painted a bleaker situation if the judiciary report of 2023/2024, which was released in October, 2024, included the succession/ administration causes and civil suits.
But my estimation as a legal practitioner, given the numerous applications that have been filed for extension of letters of administration/grant of probate, the Family division will surely have the highest number of cases and certainly case backlog by the end of 2025.
One of the greatest contributors to these escalating case backlog numbers, especially in the Family division or in family cases, is succession wrangles and disagreements over sharing or distribution of property. But one may ask; how do we find ourselves in that position yet it is well known that one day or maybe in the next minute or hour, one may and can die but no one of us is prepared?
So, when a father or mother dies leaving behind valuable properties, the children or dependants get entangled in fights over who takes what and how much one should take. Technically, the properties left behind by a deceased person are collectively called the estate.
An estate can include money on bank accounts and mobile money (e-money), savings (social security), investments, personal goods such as jewellery, art-pieces, cars, shares, land, copyrights, patents, and so on. So, the untimely but known death occurs when the owner of the estate passes on without dividing/distributing the property to those that may survive him/her or technically what is called estate planning.
In sum, estate planning is the arrangement of one’s properties or assets for his/her benefit and that of his/her loved ones during and upon his/her death. Estate planning can be done through writing a will, making a trust, co-ownership of property, formation or creation of a company as well as gifting.
But the most important of all these strategies is the trust. A trust is a legal relationship or concept through which an owner of property transfers the legal interest/ownership of that property to another person to hold/manage for the benefit of another who may or may not be a relative.
YOU MAY WONDER, WHY A TRUST?
A trust is convenient because there is no need for letters of administration by the survivors. Anyone who has ever followed the process of acquiring letters of administration will attest the level of bureaucracy and frustration they have to go through before completing the process.
Even after the completion of the process, there is always a risk for the estate to end up in the hands of a reckless person or people. But with a trust, there is protection of property from sell and from legal challenges such as fraud and cheating.
Meanwhile, a trust also fosters financial growth and continuity through arrangement of business/affairs to pay less tax, which is generally known as tax planning. The arrangement also provides for the sharing of income/proceeds of the estate instead of capital/factors of production.
A fundamental attribute about a trust is that it regulates how income/trust fund should be invested. If the deceased wished to have his estate help an organisation for the underprivileged, nothing the trustees can do to overturn it. What’s more, given the clear mandate a trust thrusts upon the trustees, it leaves little room for disputes in succession or administration.
However, that is not to say that a trust deed is unamendable; it can be modified accordingly with time to address issues of the times. The big takeaway from all this is that upon death, the deceased’s property does not have to be in their names for the targeted beneficial owner/s to enjoy it.
kafsalex@yahoo.com
The author is an advocate of the High court with speciality in estate planning.
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