LAW CORNER

2019-12-11 06:01

EXECUTORS and their role in estates.

What is an executor of a deceased estate?

While we are alive, we gather assets, create liabilities, open investment and bank accounts, and do what we can to build and manage our estates. It is advisable that we draw up a Last Will and Testament to specify what we would like to happen to our estate after we pass away.

When we pass away, someone has to assist in administering and winding up our estate, and give effect to the wishes we express in our wills. This is the duty of an executor.

How do I specify who I would like to be my executor­?

Your Last Will and Testament should have a nomination clause specifying who you would like your executor to be. The master may grant letters of executorship in this instance in terms of section 15(1) of the Administration of Estates Act.

If you pass away intestate [without a valid will], it will be up to your intestate heirs to nominate an executor.

If the heirs cannot agree upon the choice of an executor, the master may ultimately be called upon to nominate an executor in terms of section 18 of the Administration of Estates Act. However, the master only involves themselves in such a manner as a last resort, and it can significantly delay the administration of the estate as the estate administration can only commence once an executor has been appointed.

How many executors am I allowed to nominate?

You may nominate as many executor’s as you would like in your will. An executor will also be required to sign multiple documents throughout the administration process.

The more executors you appoint in terms of your will, the more difficult it becomes to administer the estate.

In some instances where more than one executor is appointed, the executors may choose to grant one executor their special power of attorney, thereby authorising that person to attend to the day to day administration of the estate.

Having multiple executor’s can also become an issue when decisions need to be made with regards to the estate, as disagreements may arise and this can delay the administration process.

Who should I choose as my executor?

Please bear in mind that some institutions will only administer your estate if your estate is worth more than a certain amount when you pass away. This is not always made clear when you draw up your will with the institution, and upon death, your family are placed in a position where the institution you thought would be attending to the administration of your estate are unable to assist, and refer your family elsewhere.

This can significantly delay the administration of the estate as the original will held by the institution is sent by them to the master and this process, together with the fact that the family are now required to nominate an alternative executor to the executor named in the will of their deceased family member, can cause delays in an alternative executor being appointed. It would therefore be wise to check what monetary threshold the institution has, if any, if you have chosen an institution to be your executor.

If you do not fall within their threshold, you may wish to consider changing your executor, as the institution will likely renounce executorship once you pass away.

Executors and the masters office

Please also take note that your estate will be reported at the master’s office responsible for the area in which you pass away.

It can be quite inconvenient if your executor lives in Johannesburg, for example, and your estate is reported in Pietermaritzburg. This is because the executor’s original signature will be required on multiple documents, and the master has multiple documents which it requires to be submitted throughout the administration process.

In addition, it is helpful for the executor to be close to the master’s office to enable the executor to follow matters up in person (either personally or by way of a master’s office clerk who attends upon the master on behalf of the executor).

It is best to submit documents to the master’s office by hand, as the postal service can be unreliable, and important original documents may be lost if they are sent via the postal service.

Your executor will likely have to appoint and pay for an agent to deal with the estate if they do not live near the area in which you pass away. An alternative to this is that your executor may ask the Master of the High Court in the area in which you passed away to renounce jurisdiction and grant jurisdiction to the master’s office in the area in which they reside or practice.

The executor will have to provide the master with compelling reasons as to why they would like the master’s office to renounce jurisdiction, and the master then has the discretion as to whether to renounce jurisdiction or not.

In summary

Administering an estate can be a complicated and time-consuming process. It is important to consider the consequences of choosing a certain person as your executor.

By taking the above factors into account you can avoid lengthy delays and ensure that your estate is administered as efficiently as possible.

— Carol-Ann Wheeler [candidate attorney].

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