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Your trusted guide: Selecting the right executor for your estate

08 August 2023 Advocate Anneke Le Roux, Senior Fiduciary Specialist at Professional Provident Society (PPS)

My dad drafted a valid Will and appointed his friend – residing in the UK – and my uncle as the executors of his estate. In his Will, he named his three children as the beneficiaries. After my dad’s death, my uncle has taken ‘control’ of the assets and is unwilling to share information regarding the estate with us. The Master (of the High Court) does not want to appoint my dad’s friend as the estate’s co-executor as he is not domiciled in South Africa.

In the account above, the initial selection of executors appeared to be straightforward. However, circumstances have taken an unfortunate turn as the uncle has assumed control of the estate, leaving the beneficiaries without access to vital information regarding its management. Consequently, the beneficiaries now face an uncertain and frustrating future.

This situation serves as a poignant reminder of the criticality of the careful selection of an executor who will diligently and transparently fulfill their fiduciary duties. The complexities and potential delays that can arise during estate administration underscore the importance of proactive estate planning and highlight the possible repercussions should an executor fail to discharge their obligations adequately.

Death is not a pleasant conversation, but I am certain we all heard the horror stories of a friend, loved one, or family member that passed away and the complications that can go with no proper planning or, more frighting, of an executor that did not perform their fiduciary duties in the administration of the estate.

What is an executor?
An executor is the person who will attend to the administration of your estate after you have passed away. The executor is appointed in terms of the Administration of Estates Act 66 of 1965 by the Master of the High Court. The Act sets out certain rights and responsibilities of an appointed executor, such as remuneration, who may act as such, and the consequences if the executor does not meet their responsibilities.

If a person dies without having a valid Will, the appointment of the executor is through a nomination in terms of the Intestate Succession Act, 81, of 1987, and is also appointed by the Master of the High Court.

Who cannot act as an executor of your estate?
The executor can be anyone you trust, like a friend, family member, attorney, your bank, or trust company. However, certain individuals and entities are ineligible to be appointed as executors.

These exclusions include but are not limited to, insolvent individuals, minors, companies, the Master of the High Court in its personal capacity, and anyone disqualified according to the provisions of the Act. The Master of the High Court may require the appointment of an agent to administer the estate, should the nominated executor not have the required expertise, knowledge, or experience required to administer the estate.

The Master of the High Court may refuse to issue the Letters or Executorship (Section 22(2)(a) of the Estate Administration Act, 66 or 1965) to a nominated executor resident outside the Republic of South Africa until the nominated executor find sufficient security for the administration of the estate and choose domicilium citandi et executandi at an address in the Republic of South Africa. This could cause delays in the appointment of an executor, and should the Master of the High Court appoint an executor, the estate will be liable for an additional cost in the security required.

What are the responsibilities and duties of an executor?
The executor must administer and distribute the deceased’s estate in terms of the Will or the Intestate Succession Act, where there is no Will.

The duties of the executor are as follows:
• Reporting the estate to the Master of the High Court.
• Providing an account to beneficiaries.
• Advertise the estate in the local newspaper and Government Gazette to invite all creditors and debtors to lodge claims against or for the estate.
• Verify all personal effects, including contacting all the banks and other institutions at which the deceased would have had accounts and collecting all the assets and liabilities of the deceased’s estate.
• Obtain a valuation of the assets and liabilities and account for them in a liquidation and distribution account submitted for the Master of the High Court’s approval.
• Advertise the liquidation and distribution account to allow all stakeholders to view their claims against the estate.
• Process the transfer of assets, pay all claims against the estate, and pay the relevant taxes, transfer duties, and fees once the account had been approved and lied free of objections against the estate.
• Wind up and distribute the estate according to the Will or the Intestate Succession Act once all claims against the estate have been gathered.

What skills and knowledge should an executor have?
There are several essential skills and knowledge an executor of an estate should have, which many individuals – even those who are highly educated – do not have. These include:

• A comprehensive understanding of estate planning and administration laws. This includes familiarity with relevant legislation, such as the Administration of Estates Act and the Wills Act, and staying updated on any changes or amendments.
• Direct access to the Master of the High Court and a thorough understanding of effectively navigating and engaging with its office.
• Proficiency in financial matters and accounting principles to effectively manage the deceased’s assets, debts, and taxes.
• Strong organisational and communication skills to efficiently handle various stakeholders, including beneficiaries, creditors, and legal authorities.

In conclusion, the role of an executor in estate administration is of utmost importance. It should not be taken lightly and one must be careful to appoint a family member or friend without considering whether they have the necessary knowledge and skills to manage the task. The story about the uncle “taking over” the estate serves as a reminder of the possible complications that can arise if the selection of an executor is not carefully considered.

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