Executors in Deceased Estates

There has been some vigorous debate on our website on the appointment of Executors. It was thus thought appropriate that we add some comments on this question and why it is important to choose the correct executor – do so prior to death, as once death has occurred it may be too late for your heirs and beneficiaries to do much about it!

A deceased estate consists of all the assets and liabilities which a deceased person leaves behind at his death.’” (Deceased estates, 7th Edition, W Abrie and Others.) The process by which a deceased person’s debts are paid and the balance of his assets are awarded and transferred to his beneficiaries is known as the administration of an estate and is handled by the Executor.

The whole administration process centres around the office of the Executor. It is the Executor who has full responsibility for the proper administration of the estate and is appointed by the Master of the High Court which has jurisdiction over the deceased estate. Jurisdiction is exercised by the Master in whose area the deceased was ordinarily resident for the twelve months prior to death.

 

Often a son, spouse or family friend is appointed as executor of an estate and that person will appoint an agent – like an Attorney or Accountant. These agents effectively do the work, but if anything does go awry in an estate the Master will take steps against the executor – and not the agent.

 

The executor can be one who is nominated in a will and is referred to as the executor testamentary or, if there is no will (the deceased died intestate), or the executor so nominated has passed away, or does not wish to accept the appointment, then the Master appoints an executor dative – after the necessary formalities have been completed. The Master will not appoint any person who may be legally disqualified from acting such as an insolvent person, or an insane person, or a minor. The Master must be satisfied that the appointee is someone who is deemed to be a fit and proper person.

 

To ensure effective administration of a deceased estate it is important to ensure the following:

 

  • Speed It is in the interests of the beneficiaries that the estate be quickly wound up so that they may receive their inheritance. It is also in the interests of the executor to wind the estate up as quickly as possible as he may only receive his fee once all the Master’s requirements have been complied with.
  • Accuracy The estate must be wound up with great attention to detail and too much speed can ensure mistakes and so delay winding up. A careful balance must be maintained.
  • Sensitivity for the needs of beneficiaries The executor must be mindful that the beneficiaries have often lost a loved one and handle issues sensitively.
  • Expertise Possibly the most critical aspect. That is why persons who are experienced in estate administration should be appointed as executors. Estates must be administered by competent professionals who have the necessary ability and do it as a major part of their businesses and not simply as something that is relegated to the bottom of the pile and to be done after other work.

 

Ensure therefore that you choose your Executor carefully, so that you do not prejudice your estate and your beneficiaries.

20 May 2011

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

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