Execution process

The administration process for estates of a gross value of R125 000 or more is defined in the Administration of Estates Act, in terms of which executors must follow these guidelines:

Notice of estate and appointment of executor	6 to 10 weeks
Preparatory work for compilation of Liquidation and Distribution account	6 to 24 weeks
Investigation of Liquidation and Distribution account by the Master	4 to 8 weeks
Liquidation and Distribution account for inspection	4 to 6 weeks
Finalisation of the estate (after inspection period and no objections lodged)	4 to 8 weeks
Total (of an average estate):	6 to 13 months

Notice of the estate and appointment of the executor

To appoint an executor in an estate, the Master of the High Court must be officially notified of the death. This is set in action by sending certain prescribed documents to the Master. When the Master receives the reporting documents, he examines them and satisfies himself as to the validity of the will (when applicable). If he is satisfied, he appoints the executor by issuing a "letter of executorship".

Only on receipt thereof may the executor officially begin to administer the estate. However, while the executor is waiting for the letter of executorship, he obtains all available information and documentary evidence to determine assets and liabilities in the deceased's estate.

When an executor is appointed in terms of a nomination in a will, the process is known as a "testamentary" appointment. This is a process of appointment which normally runs smoothly.

When a deceased does not leave a will, or does leave a will, but the executor nominated therein has already died, a process must be followed in which an executor is appointed "datively".

This is a process where the major beneficiaries of the deceased must propose and nominate an executor. The interested beneficiaries's written nominations must then be submitted to the Master for consideration. Should the Master approve the nominated executor, he will confirm the appointment.

However, the Master may reject the nominated executor's application for certain reasons, and may refuse to confirm the appointment. He may even convene a meeting at which he requests the beneficiaries to nominate an executor.

However, it is not advisable not to nominate an executor by will, as a "dative" appointment may cause much valuable time to be lost, to the detriment of creditors and heirs.

In the case of estates, including community estates, with a gross value of less than R125 000 the Master may waive the official appointment of an executor to carry out the prescribed administration process.

This process takes approximately 6 to 10 weeks.

 

Liquidation and Distribution Account preparation and compilation

• On receipt of the letters of executorship, the executor is obliged to insert a notice in the Government Gazette and local newspaper whereby the creditors of the deceased are requested to notify the executor within 30 days of any claims against the estate. In the meantime the executor continues to obtain valuations of fixed and movable assets in the estate, as well as particulars of the deceased's investments.

• As soon as all particulars have been received, the executor determines whether the estate has sufficient cash to meet its obligations. If not, the beneficiaries are consulted about the way in which they intend supplementing the cash shortfall. Should they not be able to do so, the executor is compelled to sell assets from the estate to cover the cash deficit. When assets have to be sold, it often leads to protracted negotiations with beneficiaries, auctioneers and other persons.

• In the meantime the executor would also already have determined the tax position of the deceased by submitting the necessary returns to the South African Revenue Service.

• The preparatory work for the compilation of the Liquidation and Distribution account can take anything from 6 weeks to 6 months, depending on the size and complexity of the relevant estate. In terms of the Administration of Estates Act, the executor is obliged to submit the account within 6 months of the issue of the letter of executorship, unless the Master's permission for extension of time has been obtained in advance.

Preparation and compilation takes 6 weeks to 6 months.

Examination process

• On the basis of the information obtained, the executor now compiles a Liquidation and Distribution account. This sets out all assets, liabilities and administration costs. It explains how assets are divided and whether estate duty is payable or not. The account therefore sums up the entire administration process.

• The account is submitted to the Master. The Master's examiners check the account, with due observance of all legal rules with which the executor must comply. The Master may request further information and proof from the executor in the form of a questionnaire.

The examination process takes 4 to 8 weeks.

Liquidation and Distribution account for inspection

• As soon as the Master has notified the executor that he is satisfied with the account, he is obliged to lay it open for inspection by parties concerned for at least 21 days. This is done by inserting a notice in the Government Gazette and a local newspaper, which indicates where the account will be open for inspection for the said period. Any person who has an interest in the estate and feels aggrieved by the account compiled by the executor, may lodge an objection against it with the Master, or Magistrate when applicable, during the period in which the account is open for inspection.

• The Master will refer the objection to the executor for an answer. After the Master has received the executor's version on the basis of the objection, he will make a decision which must be followed by the executor.

• Should the executor or the person who made the objection not agree with the Master's decision, such person may within 30 days or within the further period of time the Court allows, apply to Court by means of a notice of motion for an order which sets aside the Master's decision, and the Court may grant the order it deems fit; decide that the objection is based on a dispute of fact, and that he cannot make a decision. In such a case the objection will have to be referred to the Court for a decision. This could also mean that witnesses must be called to testify. This could cause the administration process to be postponed indefinitely and the finalisation of the estate can take place only after the objection has been settled

.

Provided there are no objections, the period for this will be approximately 4 to 6 weeks.

Finalisation of the estate

• If no objections are made against the Liquidation and Distribution account or if an objection has been settled, the executor can finalise the estate. He/she pays the creditors, hands over their inheritances to the heirs and arranges for the transfer of fixed property in the names of those entitled to it. The process of transfer may occasionally take a while, as there are various legislative requirements that have to be met.

• As soon as proof has been provided to the Master that all creditors have been paid, that the heirs have received their inheritances and that the fixed property has been transferred, the estate is regarded as finalised and the executor's office is terminated.

The process of finalisation takes 4 to 8 weeks.