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Executors of a Deceased Estate

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Executors of a Deceased Estate

Executors play a critical role in ensuring that the deceased’s estate is administered effectively. Executors should be transparent and deal with the estate’s assets cautiously.

Who Chooses the Executor? More than one Executor? Rights and Responsibilities of an Executor? The Executor or Executrix of your estate is charged with winding it up and is responsible for the administration of your estate once you pass away.

Whilst the deceased is allowed to nominate a potential Executor or Executrix, the Master of the High Court appoints the Executor. This is done in terms of the Administration of Estates Act [No. 66 of 1965].

This act bestows upon an appointed Executor, certain rights and responsibilities and even sets out the consequences where the Executor is unable to meet their responsibilities.

In terms of the Act an appointed Executor is also entitled to remuneration in terms of the Act.

Who Chooses the Executor?

In circumstances where the deceased has left a valid Will, an Executor is usually nominated in terms of this Will. This is known as an Executor testamentary.

If the deceased has passed away without leaving a Will, the heirs of the deceased estate will have to nominate a person or even persons, to be appointed by the Master of the High Court as the Executor.

This is known as an Executor dative and is done in terms of the Intestate Succession Act [81 of 1987].

These nominated persons, whether in terms of a Will or in the absence of a Will, may only be allowed to perform the functions and duties of an Executor once a formal appointment has been made by the Master.

The Executor needs to apply to the Master to be formally appointed and granted the necessary powers to administer the deceased estate. This process usually takes up to six weeks but may vary depending on several factors.

It often happens that in specific cases, the Master may request that an Attorney be appointed as the Executor of a deceased estate instead of a surviving spouse or another direct decedent.

It generally happens in circumstances where the nominated Executor in terms of the Will is not able or is unwilling to accept the appointment and there is no provision of substituting the Executor within the Will.

This can even occur where the deceased passed away without leaving a Will and/or where there are minor heirs involved.

In cases where the value of the deceased estate is more than R 250 000.00, the Master of the High Court may require that a person with no legal training, but who is nominated as an Executor, be assisted by an Attorney in the administration of the estate.

Can There Be More Than One Executor?

There can in fact be more than one Executor nominated in a Will or even more than one Executor nominated by the heirs of the deceased.

If this occurs, and these parties are in fact appointed by the Master, then these nominated persons will be referred to as co-Executors.

The remuneration that the Executor is to receive would then be shared between the appointed co-Executors.

What Rights and Responsibilities do Executors Have?

In terms of the Administration of Estates Act, the appointed Executor of a deceased estate, must basically collect all assets and liabilities of the deceased.

They must account for these assets and liabilities in a Liquidation and Distribution Account and are responsible for the distribution of all assets to the heirs as per the deceased Will.

Or, conversely, be responsible for the distribution of all assets to the heirs of the deceased in terms of the Interstate Succession Act.

The Executor must also use reasonable efforts to locate the Will of the deceased and use such reasonable efforts to ensure that this Will is the most recent Will made by the deceased.

Although funeral and burial arrangements are usually made by family members, it is the Executor of the deceased estate that has the legal authority to make these decisions.

It is important to note, that even though the deceased may have left instructions regarding the funeral and burial arrangements in their Will, this is not legally binding on the Executor, but merely aids in assisting the Executor in trying to fulfil the deceased’s last wishes.

At the onset, the Executor should meet with the heirs and family of the deceased to gather all relevant information and documents needed. This should include the death certificate and even a list of the deceased’s assets and liabilities.

Thereafter, the deceased’s estate must be reported to the Master of the High Court in the area where the deceased lived.

The Executor will have to provide notice to the deceased’s creditors to inform them of the deceased’s passing.

This notice will request that the creditors lodge their claims against the deceased’s estate within a period of not less than 30 days or 3 months after publication of the notice in a local newspaper and Government Gazette.

The Executor must close all existing bank accounts of the deceased and a separate bank account must be created in which all money that forms part of the deceased’s estate must be kept.

The Executor will have to determine if the deceased’s estate has enough assets to pay for the liabilities that form part of the deceased estate.

If there are insufficient funds to pay some or even all the liabilities, the Executor must consider selling some of the assets of the deceased that form part of the estate.

As previously mentioned, the Executor is responsible for drafting accounts that must be advertised for public inspection. These accounts will be lodged at the offices of the Master.

The accounts will indicate the assets and liabilities and even how the deceased’s estate will be divided and distributed amongst the heirs.

After the accounts have been approved by the Master, the Executor will have to pay the creditors of the deceased and then distribute the deceased’s estate accordingly.

Regular reports and copies of the Will, the estate account, as well as final settlement statements should be provided to the heirs to ensure they are well informed regarding this process.

 

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