The administration of deceased estates is largely governed by the Administration of Estates Act 66 of 1965. Other acts that may also find application in this process are: the Intestate Succession Act 81 of 1987, the Income Tax Act 58 of 1962 and the Maintenance of Surviving Spouses Act 27 of 1990. The administration of estates is a specialised area of law and it is common practice and advisable for persons who find themselves nominated as executors in a will, and who are not experienced in the administration of estates, to appoint an agent to act on their behalf. This article outlines the basic steps to be taken in order to liquidate an estate and distribute assets to the respective heirs.
REPORT DEATH AND LODGE WILL WITH THE MASTER OF THE HIGH COURT
The death of any person is reported by completing the prescribed notice form and lodging same within fourteen days of the occurrence with the Master. The surviving spouse or where there is none, the nearest relative usually report the death. The person who, at time of death (or immediately thereafter) is in control of the premises where the deceased died may also report the death.
Any person who has in his possession any document purporting to be the will of the deceased must, as soon as the death comes to his knowledge, deliver the document to the Master. Contrary to popular belief, it is not necessary to have a meeting of surviving relatives to “read out the will”.
ISSUE LETTERS OF EXECUTORSHIP
An executor is an individual appointed to administer the estate and his main duty is to carry out the deceased’s instructions in terms of the will. The executor has authority to act only upon receipt of his Letters of Executorship from the Master, which entitles him to administer all the assets of the estate within the Republic of South Africa.
ADVERTISE TO CREDITORS AND LODGE CLAIMS
After lodging the preliminary inventory detailing the immovable and movable property, as well as claims in favour of the estate, the executor must advertise to all creditors in order for them to lodge their claims against the estate. These claims must then be investigated by the executor and if accepted, included in the Liquidation and Distribution Account (“the L&D”). The executor must determine the solvency of the estate (in other words, determine if the estate is able to pay all its debts) and, if provided for in the will, liquidate the estate in order to provide for payment of the creditors.
LODGE L&D WITH MASTER
The executor must, within six months after issue of the letters of executorship lodge the L&D account with the Master, which includes all assets and liabilities of the estate, as well as the distribution to the heirs. If there are valid reasons for a delay in lodging the L&D, such as disagreements between family members of the deceased, the Master will grant an extension. The Master will, upon lodgement of the L&D account, scrutinise same and issue a questionnaire to the executor, should it be deemed necessary. The executor is obliged to answer any such questions to the satisfaction of the Master.
MASTER’S APPROVAL, PAYMENT TO CREDITORS, HEIRS AND LEGATEES
Upon the Master’s approval of the L&D account, same must lie for inspection for a period of 21 days at the Master’s office, as well as the nearest Magistrate’s Court. In the event that any written objections are received, they must be attended to by the executor as prescribed in the Act. Upon resolution of any objections, or if none are received, the executor may proceed to make payment to the heirs and transfer assets in terms of the will.
MHI Attorneys has a dedicated estates department, specialising in estate planning, the drafting of wills and administration of deceased estates. In most cases the delays in administering a deceased estate is due to a poorly drafted will and/or inexperience on the part of the executor.
Written by Michelle Taljaard
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.