Please note that since this book was last published in 1997 some of the laws that have been referenced may have changed. We
are doing our best to update the articles, however, it is advisable that you to consult an attorney before relying on any information contained herein.
The personal property and possessions of deceased persons, as
well as any monies owed to them (and by them), are known as
deceased estates.
The winding up of a deceased estate, especially if it is one
plagued with disputes over assets and debts, can tax the
country's best legal minds.
And yet, what is meant to happen is quite simple: when people
die, their representatives (executors) settle all outstanding
debts, after which the remainder of the estate is passed on to
the deceased's heirs.
An executor's first duty is to locate the will (see wills), if there is one. If the
will cannot be found among personal papers, inquiries should be
made at the deceased's lawyers, accountants, bank or insurance
company. It may be in safekeeping with one of them.
If it cannot be traced, even though relatives may be positive
that one exists, the estate must be administered as if no will
had been drawn up. (See intestacy.)
Estates which do not have an executor
If the deceased has not nominated an executor in the will, or
if the person dies intestate, the Master of the Supreme Court may
dispense with the appointment of an executor (called an executor
dative) if the value of the estate does not exceed R50000. The
Master will then authorise the administration and distribution of
the estate in order to reduce the time and expense usually
involved in winding up an estate.
The Master will, however, not be able to exercise this option
if it is inconsistent with the terms of the will. If the estate's
value exceeds R50000, the Master will appoint an executor and
issue letters of executorship.
Estates for which executors are appointed
The task of the deceased's executor, or executors, where more
than one was appointed, is to:
- Evaluate the estate and its debts;
- Prepare documents required by the Master of the Supreme
Court, who authorises any dealing on behalf of the
estate;
- Obtain authority to handle the estate;
- Collect the assets of the estate;
- Settle any debts, estate duty, income tax, or Master's
fees;
- Pay legal fees and bequests, and distribute or invest the
remainder of the estate as required by a will, if
applicable, or according to the rules pertaining to
intestate succession. (See intestacy.)
Applying for authority of executorship
A person appointed executor in a will (the executor
testamentary) can either handle the estate personally, approach a
lawyer, accountant, bank or trustee company for help, or engage
them to do the job.
If the deceased appointed a particular institution or legal
firm to be one of the executors, the burden of the administration
is generally handled by them. No one may handle a deceased estate
without:
- The permission of the Master of the nearest division of
the Supreme Court;
- Being in possession of the necessary letters of
executorship.
The Master of the Supreme Court grants letters of executorship
to those persons who have been authorised to deal with the estate
and who have agreed to accept the job of winding it up.
Several copies of this document will, for example, be needed
by banks, insurance companies and legal firms that may hold
assets pertaining to the deceased. These institutions regard the
'letters of executorship' as proof that the assets they hold will
be passed on to the properly authorised representative of the
deceased estate.
Costs of handling an estate
The costs of employing a specialist agency or party are paid
by the estate, as is the case with all costs related to the
winding up of an estate. In fact, the costs of winding up the
estate, including the Master's fees, are deducted from the
assets, with the balance being distributed according to the will.
If there is no will, the laws relating to intestacy will apply.
Lawyers' fees are calculated on the basis of the amount of
work done and the time taken to complete it, usually at a tariff
rate, and may include part of the executor's fee. It is worth
asking a lawyer for a rough estimate of what the charge will be.
Executors' fees are set by a tariff that is calculated on the
value of the estate.
Duties of executorship
The duties of an executor can be divided into three
stages:
- Duties immediately after the death.
- Duties involved in obtaining authority to deal with the
estate.
- Duties to be carried out on and after receipt of the
letter of executorship.
After death
The following documents must be lodged with the Master of the
Supreme Court:
A DEATH NOTICE (not to be confused with the death
certificate) Death notice forms are obtainable from the local
Master's office, and must be completed in the case of any
deceased who leaves assets or a will in South Africa. The
document must be completed, signed and lodged with the Master
within 14 days by the surviving spouse or, if there is no
surviving spouse, by the nearest relative residing in the
district where the death occurred. The person in control of the
premises in which the death occurred is also required to hand in
a death notice if there is any uncertainty whether a relative has
already done so.
If the person who signs the death notice was not present at
the death, or did not identify the deceased after death, he or
she must furnish the Master with proof of the death (a death
certificate).
THE LAST WILL AND TESTAMENT The signed, original will
must be handed to the Master of the Supreme Court by the person
legally in possession of it. The Master normally does not accept
a signed copy as a substitute for the original unless it is
accompanied by a court order, but will usually accept a duplicate
original.
AN INVENTORY OF ASSETS AND PROPERTY The official form
can be obtained from the office of the Master of the Supreme
Court, or from legal stationers. The form is divided into three
sections:
- For immoveable property such as land and buildings.
- For moveable property such as jewellery, paintings and
motor vehicles.
- For claims in favour of the estate.
The inventory should indicate whether total assets exceed
R50000; if they do not, the Master can shorten the procedure and
allow the estate to be wound up in an informal (cost-saving)
manner. Whatever the value of the estate, the Master still has
the discretion to convene a meeting of interested parties.
The surviving spouse or, if there is not one, the closest
relative residing in the district where death occurred, must sign
the inventory.
Letters of executorship
The proposed executor must hand two documents to the Master of
the Supreme Court before letters of executorship will be
granted:
- An acceptance of trust, completed and signed in
duplicate. This form is available at the Master's office.
The legal status of the nominee must be disclosed on the
form and the signature of the nominee must be attested to
by a magistrate or a commissioner
of oaths. A minor cannot be appointed to be the
executor of an estate. The Master's office will forward
the copy of the acceptance of trust to the South African
Revenue Service. The Receiver of Revenue must be informed
because of the possible tax implications of a deceased
estate.
- A security bond for an amount fixed by the Master in
cases where security is required to ensure the honesty of
the executor. In general, this will cause no problem,
because the will in question would prob-ably have
exempted the executor from lodging security. Security is
generally not required where the executor is the parent,
child or surviving spouse of the deceased. A bond can be
obtained from an insurance company on submission of a
proposal form (available from the company) and a bond of
security (available from the Master). An insurance
company is not the only source of security: if private
sureties are used, there must be at least two, each of
whom must either own unbonded landed property or bonded
landed property where the excess value of the property
over the value of the bond is at least equal to the value
of the total assets. The amount of security required is
at the discretion of the Master, who generally insists on
security covering the value of the assets disclosed in
the inventory. When unsure of the value placed on the
assets, the Master may have them valued. Letters of
executorship are issued once the Master is satisfied with
the acceptance of trust and the security bond. Until such
authority has been received, the executor may only
dispose of property that will enable the arrangement
of:
- A suitable funeral for the deceased;
- Subsistence for the deceased's surviving spouse and
family; or
- Safe custody of any part of the deceased's estate. The
letters finally empower the executor to wind up the
estate.
Duties on appointment
Executors are required to act in several specific areas:
- They must make their own inventories;
- They must deal with creditors, income tax, estate duty
and the banking accounts;
- They must distribute the estate, wind it up and
officially terminate their duties as executor.
INVENTORY After taking custody of the first
inventory and all the property, belongings and documents in the
estate, the executor, who has been ordered to do so by the Master
or was required to find security, has 30 days after the issue of
the letters of executorship to prepare the inventory on the
prescribed form for the Master. If the Master requires a further
inventory, an additional period will be allowed to compile it. An
inventory has to show the value of all the estate's assets.
At this stage, it is normal practice to have sworn appraisals
made only of those assets that will not be realised and cashed,
but will be handed over, in kind, to the proper beneficiary in
terms of the will.
CREDITORS The executor will call on creditors
to lodge any claims, usually within 30 days, by a notice in the government gazette and in one or
more newspapers circulating in the area or areas in which the
deceased resided in the 12 months preceding death.
INCOME TAX The executor is also the
'representative taxpayer' of the estate, responsible for lodging
the necessary income tax returns and for paying any outstanding
tax. In most cases, the deceased will have submitted an income
tax return to the Department of Inland Revenue for the tax year
ending on 28 or 29 February preceding the date of death. It will
then be the executor's duty to prepare and lodge a return of the
deceased's income from the previous 1 March until the date of
death.
The Income Tax Act, 1990, is specific about who is responsible
for the payment of income tax on income that is received by or
accrues to the estate after the taxpayer's death. The position
is:
- If the Receiver of Revenue is satisfied that the income
has been derived for the benefit of an heir or legatee,
that person will be responsible for any tax
liability;
- If the Receiver is not satisfied that this is so, the
income is deemed to be the income of the estate. The
executor, as representative taxpayer, is liable for
payment of any tax on the income. In other words, the
estate will pay the tax.
The Receiver will require details of the income of the estate
from the date of death to the date of its final distribution,
divided into tax years. The names, addresses and, where possible,
the tax reference numbers of those benefiting from the estate
will also be required.
The legatee of a particular asset is liable for tax on income
derived from that asset. The heirs who receive the balance of the
estate, provided these can be ascertained, may also be liable for
tax.
In some circumstances the estate may qualify for a tax rebate
on the deceased's earnings, particularly if the deceased paid tax
on the pay-as-you-earn (paye) system and too much tax was
deducted.
ESTATE DUTY No estate duty is payable in
respect of an estate of which the net value is less than
R1-million.
In the estate of a spouse who dies first, any bequests or
amounts inherited by the surviving spouse need not be liable for
estate duty. In this event, however, the surviving spouse's
estate would then not be entitled to the rebate formerly allowed
for assets inherited from the deceased within a 10-year period of
the death of the first spouse dying.
The actual claim by a surviving spouse against a deceased
estate will rank as a deduction against the deceased estate. Any
accrual claim against the surviving spouse in the estate of the
deceased spouse will be regarded as an asset in the estate of the
deceased spouse.
Donations made by spouses to each other during their lifetime
are not liable for estate duty.
BANK ACCOUNT The executor must open a cheque
(current) bank account in the name of the estate as soon as more
than R100 has been received. All money received on behalf of the
estate is deposited into this account, which must be with a bank
in South Africa, preferably at the bank and branch used by the
deceased.
The executor may also open a savings account in the name of
the estate and deposit what is not immediately needed to pay
claims; alternatively, this amount may be placed in a higher
interest-bearing deposit with a bank.
The executor closes the deceased's account by drawing a cheque
for the balance and signing it 'for John Doe, deceased'. The
cheque is paid into the new estate account in a simple transfer
of funds.
The Master may ask the executor for information in writing of
the name of the bank and branch where the estate account has been
opened and may, at any time, require a bank statement or other
evidence of the position of the account.
Distributing the estate
Once the prescribed period for recording creditors' claims has
expired, the executor must establish whether or not the estate is
solvent.
If the estate is insolvent, a written notice must be sent to
the creditors (a copy of the notice must also be lodged with the
Master) informing them that unless the majority, in number and in
value, of all the creditors give written instruction within 14
days to surrender the estate as insolvent under the Insolvency
Act, 1936, the executor will proceed to sell all the assets in
the estate. (This notice must, of course, outline the manner and
conditions of the intended sale of assets.)
A creditor who objects to the executor about the intended sale
of an asset must send a copy of this objection to the Master.
After inviting comment from the executor, the Master will make a
ruling.
Within six months of being granted the letters of
executorship, or for any extended period that the Master may
allow, the executor must submit an account in the prescribed form
of the liquidation and distribution of the estate. It must
provide for the distribution of the proceeds in the order of
preference prescribed by the Act for an estate administered as
insolvent.
Provisions relating to the accounts of a solvent estate apply
with the necessary modifications. Provision is made for the
submission of a supplementary account where additional assets are
subsequently found.
This procedure does not, in terms of the Insolvency Act,
prevent the sequestration of any deceased estate as insolvent.
If the estate is solvent, the executor must realise the
assets, but only to the extent required for the discharge of the
liabilities and the carrying out of the provisions of the will.
Within six months of being granted letters of executorship, or
any such extended period as the Master may allow, the executor
must submit an account, in the prescribed form, of the
liquidation and distribution of the estate.
Supporting vouchers to the liquidation and distribution
account must be retained by the executor. The Master is empowered
to call for a voucher or vouchers in support of the account or
any entry in it. The Act also provides for the submission of a
supplementary account where additional assets are subsequently
found, without existing accounts having to be redrawn.
Submission of this account is usually known as a first and
final account, but the Master may direct the executor to file an
interim account if there are funds in hand which, in the Master's
opinion, should be distributed or used towards the payment of the
debts.
STRUCTURE OF THE LIQUIDATION ACCOUNT One
section of the account will disclose all assets in the estate at
the date of death, the net proceeds of assets that have been
realised, and the valuation of those assets not realised and how
they are to be distributed. Income and expenditure accruing to
the estate after the date of death are shown separately in an
'income and expenditure account' which should also disclose to
whom the balance is awarded. (Generally, it will be distributed
among the heirs.)
The other section of the account discloses administration
expenses, estate duty and creditors' claims. The balance, or the
difference between the sections, is transferred to the
distribution account, which reflects the awards to legatees and
heirs in terms of the will or intestate succession. (See intestacy.)
If the deceased was married in community of property, the
gross value of the joint estate must be shown. The value of the
surviving spouse's half share is then calculated, after the
deduction of administration costs and creditors' claims. The
spouse's half share will be awarded in the distribution account
by virtue of the marriage in community of property. The balance
is distributed among heirs and legatees in terms of the will or
according to the principles of intestate succession.
If the deceased was married under the accrual system
introduced by the Matrimonial Property Act, 1984, the account
will have to be drawn up accordingly. (See marriage.)
The Act states that when it is necessary to determine the
accrual in the estate of a spouse, that spouse, or the executor
of his or her estate, must furnish full particulars of the estate
to the other spouse or his or her executor.
INSPECTION OF ACCOUNTS The Master, in examining the
liquidation and distribution accounts, may question the executor
on any matter and call for any voucher or vouchers to support any
entry or entries. When all procedures have been carried out to
the Master's satisfaction, the executor publishes in the government gazette, and in at
least one local newspaper, a notice stating that the accounts are
open for inspection at the Master's office for a specified period
of not less than 21 days.
If the deceased resided in any district other than the one in
which the Master's office is situated, the accounts will also be
open for inspection at the magistrate's office in that area.
During the period of inspection anyone with an interest in the
estate may lodge an objection with the Master. The executor is
required to reply to the objection before the Master adjudicates
the dispute. Should the objector or the executor, or both,
disagree with the adjudication, they have 30 days to apply for a
court order setting aside the Master's decision.
The court has the discretion to extend this period. At the end
of the inspection period and after any objections have been
settled, the executor pays the creditors, distributes the balance
of the estate and lodges the relevant receipts with the Master.
The executor must also produce, for the Master, any deeds of
registration of property relative to the distribution.
Alternatively, a certificate by the registration officer or a
conveyancer stating which registrations have been carried out may
be lodged with the Master. To assist an executor where creditors
and heirs and legatees prove uncooperative, the Administration of
Estates Act, 1965, states that the Master may accept one of the
following documents in place of a receipt:
- A cheque made out to a creditor or heir and paid by the
drawee bank; or
- An affidavit (sworn
statement) by the executor that a creditor was paid or an
heir or a legatee received the right share in accordance
with the account. Within two months of the Master's
confirmation of the accounts, all money that the executor
is unable to distribute in accordance with the accounts
must be deposited in the Guardian's Fund on behalf of
those entitled to such money.
A MINOR BENEFICIARY'S POSITION Subject to the
terms of the will, the natural guardian of a minor heir - the
parent of a legitimate child, as a rule, and the mother of a
child born out of wedlock (see custody)
- is entitled to receive, on behalf of the minor, any movable
property which has been bequeathed to the minor.
However, unless the will expressly provides to the contrary,
no money may be paid in this manner to a natural guardian, and,
if the Master directs, no other moveable property may be
delivered to a natural guardian, unle
