providing-certainty-during-uncertain-times Providing certainty during uncertain times

Against the backdrop of COVID-19, estate executors may have a tough task ahead. It’s all the more critical to ensure you nominate the right person to act in a manner which will protect your legacy.

David Thomson, Senior Legal Adviser at Sanlam Personal Finance: Fiduciary Services, says that the national lockdown can make it difficult to be an executor. While the Masters Office has reopened with skeleton staff, it still requires hard copy documents such as the original will and the death certificate. If the executor is a family friend, he or she may struggle to get these documents given social distancing rules right now.

Thomson notes that being an executor comes with many responsibilities and it should not be taken for granted. “The administration of a deceased estate often involves a highly technical process, so the executor you appoint needs to have the requisite knowledge and experience.”

Closing the deceased’s bank accounts, collecting the assets, and advertising for debtors and creditors of the estate are among the responsibilities which executors are expected to complete.

Below, Thomson explains two executor scenarios:

1. Not appointing an executor

If you choose not to appoint an executor in your will (or leave no valid will), the Master of the High Court will appoint one for you, based on the recommendations of the interested parties (surviving spouse; heirs and creditors). This could be a long, onerous process. The Master may call a meeting to decide on the appointment, but still has the right to appoint an outsider.

2. Appointing a family member as the executor of your estate

Often the nominated person is a family member who lacks sufficient knowledge to be an executor. Should the nominated executor not be suitable, the High Court may nominate an attorney of their choice or appoint the surviving spouse. Unless you are acquainted with your responsibilities as an executor and how to execute them, nothing will happen to the estate. An agent will then have to be appointed to administer the estate on behalf of the nominated executor.

Sometimes, the Masters Office may ask a seemingly inexperienced executor to provide security as insurance for the estate assets. Thomson notes that security is quite onerous and means that if you were to be nominated as an executor, you may be required to take out an expensive insurance policy for the estate in case the assets are stolen or paid to the wrong person. When your nominated executor is a trust company, it does not require an insurance policy. The trust company has the capacity to put up a bond and the financial strength to meet any claims should mistakes be made.

For peace of mind, ensure that there is a clause that allows the executor to consult and appoint an attorney or a company like Sanlam Trust as their substitute, who would be legally able to take over the executor’s duties – if required.

Appointing a trust or attorney

Another option is to nominate your own attorney or a company like Sanlam Trust directly in your will. If you wish, you can nominate joint executors – for example, your spouse and the professional. Thomson concludes this as an extremely reassuring option. “The executor you appoint should be the person you are willing to give your bank cards, insurance policies and most personal information to. It is important to make the right choice and make provision for the cost implications, whether or not you nominate an executor for your estate.”