“What happens to you or a loved one’s estate after death?” The required legal procedure to follow in terms of South African Estate Law
The law affects everything in our lives, and it does so in death as well. It is important to know what happens when a person dies. There are specific procedures to be followed in dealing with the assets of a deceased person.
Once a person passes away and leaves a deceased estate, his/her deceased estate must be administered and legally distributed, either in accordance with the provisions of the deceased’s will or, if the deceased did not leave a valid will, in accordance with the provisions of the law of intestate succession. This procedure is overseen by the Master of the High Court, who looks after the interests of the deceased’s creditors, heirs, legatees and other third parties holding an interest in the deceased’s estate.
Who will be responsible for administering the deceased’s estate?
An Executor is either appointed in terms of the will of the deceased, alternatively nominated by the deceased’s loved ones if none was appointed in the will or if no valid will exists. It becomes the duty of this appointed Executor, to administer the estate of the deceased once he or she has accepted the appointment and has been issued with a valid Letters of Executorship.
As the administration process can be rather comprehensive and difficult, it is not always possible for the loved ones of a deceased to attend to same. Without access to the required infrastructure or knowledge it sometimes becomes an impossible process. Therefore, the appointed or nominated Executor may request and appoint an admitted attorney to attend to the administration of the deceased’s estate on his /her behalf.
The Executor or his/her agent will then have to attend to the following:
- Report the Deceased Estate to the Master of the High Court
- Apply for Letters of Executorship / Letters of Authority from the Master of the High Court:
There are specific documents which must be obtained and completed, and then submitted to the Master of the High Court. The Master can then issue either a Letters of Authority (where the value of the estate is less than R250 000.00) or a Letters of Executorship (where the value of the estate is more than R250 000.00).
- Take custody of the property of the deceased:
As soon as the Letters of Authority or Letters of Executorship have been issued by the Master, it will then be the duty of the Executor or his/her agent to take custody/control of all the property, books and documents belonging to the deceased’s estate.
- Open Banking Account:
The Executor or his/her agent has a duty to open a Bank Account in the name of the deceased’s estate to collect all moneys belonging and owed to the deceased’s estate. It will also be used to collect the proceeds of any sale, of any of the property belonging to the deceased’s estate.
- Place legal notices to creditors:
The Executor or his/her agent will then have to place legal notices in the Government Gazette, as well as in a local newspaper in the province where the deceased was ordinarily resident. These notices aim to notify the creditors or other interested parties of the death of the deceased, and to afford such parties the opportunity to approach the Executor or the appointed agent, to lodge any claims they may have against the estate of the deceased.
- Attend to claims against the estate:
The Executor or his/her agent will receive and inspect all claims made against the deceased’s estate, accept or reject such claims, and settle or defend the claims on behalf of the deceased’s estate.
- Determine Solvency of Estate:
After finalising the claims made against the deceased’s estate, the Executor or the appointed agent, on behalf of the Executor, will determine the solvency of the deceased’s estate, and subsequently follow the relevant procedures relating to either a solvent or insolvent deceased estate
- Draw Account:
After collecting or taking under his or her control all the property belonging to the deceased’s estate, and settling all accepted claims made against the deceased’s estate, the Executor or appointed agent will draw up a Liquidation and Distribution Account, wherein the administration of the deceased’s estate is reflected. The Liquidation and Distribution Account will subsequently be submitted to the Master of the High Court, for approval.
- Place legal notices for inspection of the account:
Upon approval of the Executor’s Liquidation and Distribution Account, the Executor or his/her agent will again place legal notices in the Government Gazette and the relevant local newspaper. These legal notices aim to notify all interested parties that the Liquidation and Distribution Account has been submitted, approved and is laying open for inspection by the public and all interested parties.
- Distribute and finalise estate:
Once the relevant inspection period has lapsed, and no valid objections have been raised to the Executor’s Liquidation and Distribution Account, the Executor or appointed agent will notify the Master of the High Court, and proceed to legally distribute and wind up the deceased’s estate.
Only once the administration of the deceased’s estate has legally and properly been finalised, and the deceased’s residuary estate has been distributed amongst the deceased’s entitled heirs and legatees, would the Master of the High Court relieve the Executor or his/her appointed agent of his/her duties.
Considering the above, it is important to carefully consider your estate planning and to try and ensure that your loved ones are properly assisted and taken care of when you are no longer there to do so yourself. Should you, or someone you know need any assistance in this regard, now or in the future, kindly do not hesitate to contact us.
Lizandi Van Der Merwe (Associate)