by Sarah Gama, Attorney
The executor of an estate
After the loss of a loved one, family members have to face the hurdle of winding up the estate of their deceased family member. Very few people are experienced with this process and the task at hand may seem daunting. For estates with a value of less than R250,000, the Master of the High Court may dispense with the need for letters of executorship to be issued and may instead issue letters of authority for the estate representative to act instead.
For estates with values greater than R250 000 an Executor must be appointed in order to administer the deceased estate in terms of the Administration of Estates Act 66 of 1965. An executor may be appointed in terms of the will of the deceased or, if there is no will, the person is nominated by the heirs. The appointment has to be approved by the Master of the High Court, who will issue letters of executorship, which will authorize the appointed person to act on behalf of the deceased estate in liquidating and distributing the estate in accordance with the law as well as in accordance with the will, or in the case of no will, intestate succession.
If the appointed executor is someone who is a lay person or is not familiar with the laws governing deceased estates, they should ideally be assisted by a professional such as an attorney who has knowledge of dealing with the administration of estates. In certain instances, the executor may have to lodge security for the full value of the estate unless the executor is exempted from providing security in terms of the will of the deceased. The executor may be exempted from providing security either in terms of the will, or if the executor is a parent, spouse or child of the deceased.
The executor then needs to ensure that the estate is advertised for creditors to lodge their claims against the estate within 30 days of the advertisement being placed. If no claims are lodged within this 30 day period, the executor can then proceed to liquidate and distribute the estate, by collecting any claims in favour of the estate, closing bank accounts, dealing with SARS, paying estate taxes as well as paying any liabilities of the estate. Once all the affairs of the deceased have been dealt with, these accounted for in a liquidation and distribution account. The liquidation and distribution account, a detailed report on the administration of the estate, must be lodged with the Master of the High Court by the executor once the executor has finished the administration of the estate, together with corresponding vouchers (proof and receipts). The liquidation and distribution account sets out the assets and liabilities of the deceased estate, and also sets out how the assets of the deceased estate will be distributed to the heirs. If the Master of the High Court is satisfied with the liquidation and distribution account, the estate must be advertised and lie open for inspection for a period of 21 days at the Masters office. If the 21 period lapses and no objections to the account are received, the executor can proceed to finalise the estate.
The duties of an executor are not always simple and can be administratively intensive. Therefore, careful consideration should be made by the testator (the person whose will is being drafted) on who to appoint as an Executor. If the executor is a lay person, a professional with expertise in the administration of estates should also be appointed. Spence Attorneys can assist with the preparation of wills, estate planning and can also serve as the executor or on behalf of an appointed executor in the administration of deceased estates. Contact Sarah Gama, sarah@spencelaw.co.za to find out more about our services.
Disclaimer: This article is for information purposes only and should not be regarded as legal advice. It may contain errors and/or omissions, and Spence Attorneys will not be held liable for any person acting on any information herein.