LB VORSTER ON DECEASED ESTATES NOMINATION OF EXECUTOR

Readers should not consider these articles as comprehensive guides on wills or the administration of deceased estates, nor do they provide legal advice. The information provided is merely aimed at informing readers of some basic aspects pertaining to wills and the administration process.
This particular article is based on the assumption that the deceased has left behind a valid will. Dying without a will is a subject for a future article.

1. NOMINATION

1.1 Probably the most important aspect of any will is the nomination of the executor. In many wills an executor is “appointed” which is not entirely correct as only the Master of the High Court is, by law, empowered to appoint an executor. The testator can merely nominate the executor and once the estate is reported to the Master the nominated executor has to comply with a number of requirements before the Master will make the actual appointment and issue formal Letters of Executorship.

1.2 In the event that that the gross asset value of an estate amounts to less than R125 000.00 the Master will not appoint an executor. In such a case a Master’s Representative will be appointed in terms of section 18(3) of the Estates Act 66 of 1965 with instructions to liquidate the estate, attend to payment of debts and to distribute the residue to the heirs. The Master’s Representative is not required to, amongst others, publish any notices in a newspaper or the Government Gazette, to complete an estate duty return or to prepare and lodge a liquidation and distribution account.

1.3 Until formal Letters of Executorship have been issued, or a Master’s Representative has been formally appointed, as the case may be, no person may deal with any aspect of the deceased’s estate irrespective of whether such a person was “appointed” as executor by the deceased in his will.

1.4 Non-residents owning property in South Africa and who wish to execute a separate will in respect of their South African assets would probably prefer to nominate a person or institution from their home country. This is permitted but such a nominated foreign executor would ultimately have to rely on a person or institution in South Africa to attend to the actual administration of the estate on his behalf in terms of a power of attorney. The reason for this is that the Master insists on the executor supplying a domicilium address within South Africa.

1.5 In the event of a deceased, who was a non-resident, not having executed a separate will in respect of his South African assets, the Grant of Probate (in the United Kingdom, for instance), or any similar official appointment of a person empowered to administer the estate in a foreign country, can be signed and sealed by the Master and then used in South Africa. However, this only applies to a number of selected countries and in addition some costly and time consuming requirements have to be complied with. Experience has shown that such a process will entail at least a 3-month delay before the executor will be able to commence with the administration of the estate in South Africa.

2. SECURITY

2.1 Prior to an executor being appointed as such by the Master, it will be expected of the executor to provide satisfactory security to the Master for the due fulfillment of his duties. The security has to equal the expected gross value of the estate. However, a testator can waive this requirement by stipulating in his will that it will not be required of the nominated executor to provide any security to the Master.

2.2 As far as non-residents who have not executed a separate will in respect of their South African assets are concerned, this is an extremely important issue. It is often found that foreign wills do not contain a clause to the effect that the testator waives the requirement of security by the nominated executor. In the event that a foreign person is nominated as the executor in terms of a will executed in a foreign country, such an executor would find it very hard if at all possible, to convince a local assurance company to issue a bond of security on his behalf. In the absence of satisfactory security being furnished by the nominated executor, the Master will not be able to appoint the nominated person as such.

3. CHOICE OF EXECUTOR

3.1 Despite the importance of nominating a suitable person as the executor of an estate, it is often found that this stipulation in a will is approached in a somewhat indifferent fashion. Many drafters of wills will be able to testify to the fact that the decision of an executor is often hastily made by the testator when confronted with the choice of an executor. This is peculiar considering that each person with a considerable estate must have implemented tireless dedication to the sound administration of his assets during his lifetime.

3.2 A testator would be well-advised to carefully consider his choice of executor of his estate, whether it is a trusted friend, family member or a professional person with whom, or institution with which, he has had a long and satisfactory relationship. Such a person or institution would be most likely to have sufficient sensitivity for the circumstances of the testator and his heirs to be able to wind up the estate in the best interests of all involved.