The aim of this article is to provide a general understanding on how a deceased estate should be administered. It is important to understand who will take control of the estate of the deceased, pay all the creditors and administration costs, and then transfer the balance of the estate to the rightful heirs of the deceased. This is known as the administration of the deceased estate. The entire administration process, takes place under the supervision of the Master of the High Court.
Role and function of the Master of the High Court
The Master of the High Court is appointed for every provincial division of the High Court of South Africa. Masters’ Offices are situated in the following places: Bloemfontein, Cape Town, Grahamstown, Kimberley, Mmabatho/Mafikeng, Nelspruit, Pietermaritzburg, Pretoria, Mthatha, Bisho, Thohoyandou, Johannesburg, Polokwane, Durban and Port Elizabeth. According to the Administration of Estates Act, the Master’s Offices execute, among others, the following functions:
- The administration of estates of deceased and insolvent persons in accordance with the applicable laws;
- The protection of the interests of minors and legally incapacitated minors;
- The protection and administration of the funds of minors, those contractually incapacitated, undetermined and absent heirs, which funds have been paid into the Guardian’s Fund;
- The safeguarding of all documentary material received by the Master in respect of estates, insolvencies, liquidations, trusts, etc.;
- The processing of enquiries by executors, attorneys, beneficiaries and other interested parties;
- The appointment of impartial and capable persons as executors, trustees, curators and liquidators.
Appointment or nomination of an executor/representative
We are all entitled to execute a Will setting out our final wishes and instructions, dealing with what is to happen to our belongings when we die. If the deceased has left a valid Will, the Will may state who they nominated to administer his/her estate. However, if no executor has been nominated in terms of the Will, or perhaps if the appointed executor cannot perform his/her task, or the person dies intestate (without a Will), then the Master of the High Court will appoint an executor, known as an Executor Dative. The following should be noted:
- Those who wish to be considered as executor need to advise the Master of the High Court of this, and they will need to convince the Master as to why they should be appointed;
- The Master will generally appoint someone who stands to inherit from the estate, and usually the closest beneficiary will be considered. E.g. a spouse, child, or parent;
- Once nominations are submitted, all the beneficiaries must sign a form consenting to the appointment of the executor. If there is a dispute then the Master may appoint joint executors;
- If you have been appointed as an executor and you are uncertain of your duties and responsibilities, you can approach a professional, such as an attorney or an accountant, to assist you in the administration of the deceased estate.
NOTE: If the estate of the deceased is less than R250 000, it is not necessary to appoint an executor, and the Master will appoint a Representative, otherwise known as an administrator of the estate.
Duties and responsibilities of the executor/representative
The administration of an estate might be straightforward or somewhat complicated. We will now discuss the basic duties of the Executor, bearing in mind that the following process will usually only apply to straightforward and very basic estates. The administration of certain estates can get complicated and each estate presents unique circumstances. Where you are faced with such an estate, it is best to seek legal advice or assistance from a professional. The following is a basic guide as to what the duties of an executor are:
Find a Will
- The Executor needs to immediately find out if the deceased left a Will and, if so, whether it is a valid Will.
Establish who the beneficiaries are
- The executor needs to read the Will and establish who the beneficiaries are.
If there is no Will or the Will is not valid
- The executor needs to apply the laws of intestate succession to determine who the heirs of the estate are.
List the assets and liabilities of the deceased
- The executor needs to gather all relevant documentation such as bank statements, title deeds, insurance policies, birth certificates, identity documents and any other documents relevant to the financial affairs of the deceased;
- If the deceased had beneficiaries named in a life insurance policy, then the proceeds of that policy can be paid directly to the beneficiaries without recording it in the estate/winding up the estate;
- The executor needs to establish what assets and what liabilities the deceased had. This will be recorded on an inventory form which can be obtained from the Master of the High Court’s office or on the Home Affairs website. This inventory must clearly indicate whether the estate’s total assets are less or more than R250 000;
- If it is less than R250 000 the executor can proceed straight to winding up the estate in an informal manner, without the need to advertise the estate or prepare a Liquidation and Distribution Account.
- The executor must also sign an “acceptance of trust” form, which can be collected from the Master’s office. This form must be signed and submitted in duplicate.
- Getting formally appointed by the Master
The executor needs to apply to the Master of the High Court to be formally appointed to administer the estate of the deceased person. This process can take a long time, depending on the province in which you are applying. When you apply to be formally appointed in terms of a Will, you need to go to the Master’s office with the following:
- The original Will (it is advisable to get a receipt when you hand it over);
- The death notice;
- An inventory;
- A certified copy of the death certificate;
- An acceptance of trust form, in duplicate;
- A next of kin affidavit;
- An affidavit that the estate has not been reported to another Master’s office. (required by some);
|Different Master’s Offices may require you to do things differently. It is therefore advisable that you inquire beforehand what documentation the Master will require you to bring with you.|
- A list of creditors;
- The Master will issue Letters of Executorship (if the estate is greater than R250 000) or Letters of Authority (if the estate is less than R250 000) to the person authorised to deal with the administration and winding up of the estate.
NOTE: These Letters of Executorship/Authority are important, as they are proof of your authority to collect, pay and/or transfer the assets and liabilities of the deceased. Certified copies are required by most institutions such as banks.
RHODES UNIVERSITY LAW CLINIC HELPING YOU
The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to underprivileged people in most areas of law. In addition to its New Street offices, Law Clinic staff are available to clients at the Assumption Development Centre
(Konongendi), Nceme Street, Joza, every Thursday from 9am-12pm.
The Law Clinic also provides monthly workshops on a wide range of topics in order to raise awareness of people’s rights. The workshops are conducted by staff of the Rhodes University Law Clinic at the Assumption Development Centre, Nceme Street, Joza.
For more detail, please contact the Assumption Development Centre (Konongendi) or the Rhodes Law Clinic:
Rhodes University Law Clinic
Telephone 046 603 7656