What is an executor of a deceased estate?

An executor is an individual appointed by the deceased in their will or by the Master of the High Court to administer their estate after they pass away. Executors play a crucial role in ensuring that the deceased’s wishes are carried out and that the estate is settled efficiently and in accordance with the law.

By understanding the responsibilities and duties associated with executorship, individuals can approach this role with confidence, knowing that they are fulfilling their obligations to the deceased and their beneficiaries.

The role of an executor

Gathering assets

One of the primary responsibilities of an executor is to identify and gather all assets belonging to the deceased estate. This may include bank accounts, investments, real estate, vehicles, personal belongings, and any other property owned by the deceased.

Paying debts and expenses

Executors are tasked with settling any outstanding debts and expenses owed by the deceased estate. This can include funeral costs, outstanding bills, taxes, and other liabilities.

Managing the estate

Executors are responsible for managing the deceased estate during the administration process. This may involve maintaining property, handling investments, and taking care of any ongoing financial matters until the estate is fully administered.

Distributing assets

Once all debts and expenses have been settled, the executor is responsible for distributing the remaining assets to the beneficiaries as outlined in the deceased’s will or, if there is no will, according to the laws of intestate succession.

Legal responsibilities and duties of an executor

Acting in good faith

Executors are legally obligated to act in the best interests of the deceased estate and its beneficiaries. This includes acting honestly, diligently, and without any conflicts of interest.

Following the will

If the deceased left a valid will, the executor must follow its instructions to the best of their ability. This may involve interpreting the terms of the will, carrying out specific bequests, and ensuring that assets are distributed according to the deceased’s wishes.

Complying with the law

Executors must comply with all relevant laws and regulations governing the administration of estates. This includes obtaining the necessary legal documents, filing tax returns, and adhering to deadlines set by the Master of the High Court.

Keeping accurate records

Executors are required to keep detailed records of all transactions and communications related to the administration of the estate. This includes documenting asset valuations, expenses paid, and any correspondence with beneficiaries or creditors.

Accounting to beneficiaries

Executors have a duty to provide regular updates and accountings to the beneficiaries of the estate, keeping them informed of the progress of the administration process and any significant developments.

How we can help you

Contact us if you have been appointed as the executor of someone’s estate and need help.

We can assist you throughout the process and will ensure all assets are distributed in accordance with the law and the wishes of the deceased.

How to make sure your will is valid

Drafting a will is an essential step in estate planning, allowing you to specify how you want your assets to be distributed after your death.

For a will to be legally valid, it must meet certain requirements and withstand potential challenges to its validity. While challenges to the validity of a will are not uncommon, taking proactive steps to address potential vulnerabilities can help safeguard the integrity of the document and ensure that the testator’s wishes are honoured.

Common challenges to will validity

Lack of testamentary capacity

One of the most common challenges is the allegation that the testator (the person making the will) lacked the mental capacity to understand the consequences of their actions at the time the will was made. This may arise if the testator was suffering from dementia, mental illness, or undue influence at the time of execution.

Undue influence

Another challenge is the assertion that the testator was unduly influenced by another person to make certain provisions in their will that are not reflective of their true wishes. This can occur when a person in a position of power or authority over the testator exerts pressure or manipulation to benefit themselves or others.

Forgery or fraud

Wills may also be challenged on the grounds of forgery or fraud if there is evidence to suggest that the testator’s signature or the contents of the will were altered or fabricated without their knowledge or consent.

Improper execution

Wills must be executed in accordance with the formalities prescribed by law to be considered valid. Common issues related to improper execution include the absence of witnesses, failure to sign the will in the presence of witnesses, or failure to meet other formal requirements specified by law.

Solutions to address these challenges

Ensure testamentary capacity

To address challenges related to testamentary capacity, it’s essential for the testator to execute their will when they are of sound mind and understand the nature and consequences of their actions. Seeking the advice of a medical professional or obtaining a capacity assessment can help provide evidence of the testator’s mental capacity at the time of execution.

Document intentions and decision-making process

To mitigate claims of undue influence, it’s important for the testator to document their intentions and decision-making process when drafting their will. Keeping records of discussions with family members or trusted advisors and maintaining independence in decision-making can help demonstrate that the will reflects the testator’s true wishes.

Use professional assistance

Engaging the services of a qualified attorney experienced in estate planning can help ensure that the will is drafted and executed properly, reducing the risk of challenges related to forgery, fraud, or improper execution. An attorney can also provide guidance on potential areas of vulnerability and advise on strategies to address them.

Witnesses and notary public

To ensure proper execution of the will, it’s crucial to have witnesses present at the time of signing who can attest to the testator’s identity and capacity. Additionally, having the will notarised by a notary public can provide an extra layer of authentication and help deter challenges to its validity.

Regular updates and reviews

Finally, regularly reviewing and updating of the will as circumstances change can help ensure that it remains current and reflects the testator’s wishes. This can help prevent challenges based on outdated or incomplete provisions and provide clarity for the beneficiaries.

How we can help you

Contact us if you are not sure whether your existing will is legally valid. If it isn’t, our legal professionals can assist you to ensure that your will is drafted to reflect your wishes regarding the distribution of your assets.

What happens if you don’t have a will when you die?

Intestate succession is a legal concept that comes into play when a person passes away without leaving a valid will. In South Africa, the Intestate Succession Act 81 of 1987 governs the distribution of assets in such cases, ensuring that the deceased’s estate is distributed in a fair and orderly manner. Let’s explore the rules of intestate succession and how assets are distributed when there is no valid will.

Rules of intestate succession in South Africa

Spouse and descendants

If the deceased is survived by a spouse and descendants (children or grandchildren), the spouse is entitled to a certain portion of the estate, while the remaining assets are divided among the descendants. The spouse’s share varies depending on whether the deceased had children or grandchildren.

Spouse and no descendants

If the deceased is survived by a spouse but has no descendants, the spouse is entitled to the entire estate.

Descendants and no spouse

If the deceased is not survived by a spouse but has descendants, the estate is divided equally among the descendants.

Parents

If the deceased is not survived by a spouse or descendants, the estate is divided equally between the deceased’s parents. If only one parent survives, they inherit the entire estate.

Siblings

If the deceased is not survived by a spouse, descendants, or parents, the estate is divided equally among the deceased’s siblings. If any siblings have predeceased the deceased, their share is divided equally among their descendants.

No surviving relatives

If the deceased is not survived by any close relatives, the estate will be given to the state.

Distribution of assets in intestate succession

When a person dies intestate, the distribution of their assets is determined by the rules of intestate succession outlined above. The estate is administered by the Master of the High Court, who appoints an executor to handle the process.

The executor is responsible for identifying and gathering the deceased’s assets, paying any outstanding debts and taxes, and distributing the remaining assets to the heirs according to the rules of intestate succession.

Assets are distributed in accordance with the legal hierarchy of beneficiaries outlined in the intestate succession laws. The administrator must follow this hierarchy to ensure that assets are distributed correctly and fairly among the deceased’s surviving relatives.

Importance of estate planning

Intestate succession highlights the importance of estate planning. Without a valid will in place, the distribution of assets may not align with the deceased’s wishes or the needs of their loved ones. By drafting a will, individuals can specify how they want their assets to be distributed and ensure that their wishes are carried out after their death.

Estate planning also allows individuals to appoint executors and guardians for their minor children, make provisions for the care of dependents, and minimise estate taxes and administrative costs.

How we can help you

Contact us to assist you with estate planning and drafting a valid and binding will, so you can have peace of mind knowing that your affairs are in order and that your estate is distributed according to your wishes.

Do you have a valid will?

Drafting a last will and testament is a crucial step in ensuring that your wishes are carried out after you pass away. Having a valid will in place can provide peace of mind and clarity for your loved ones during a challenging time.

Why drafting a will is important

Ensuring your wishes are honoured

In a will you can stipulate how you want your assets to be distributed after your death. Without a will, the distribution of your estate will be governed by intestate succession laws, which may not align with your wishes.

Providing for your loved ones

A will enables you to provide for your loved ones, including your spouse, children, and other dependents. You can stipulate who should inherit specific assets or receive financial support, ensuring that they are taken care of after you’re gone.

Minimising family disputes

Clear instructions in a will can help prevent disputes among family members over the distribution of assets. By outlining your wishes in writing, you can minimise the potential for conflict and ensure that your estate is settled smoothly.

Appointing guardians

If you have minor children, a will allows you to designate guardians who will be responsible for their care in the event of your death. This ensures that your children are placed in the care of individuals you trust and who share your values.

Key elements of a valid will

Identification of the testator

The will should begin with your full legal name and address, clearly identifying you as the testator (the person making the will). A testator must be older than 16 years.

Appointment of an executor

You should appoint an executor to administer your estate and carry out the instructions in your will. Choose someone who is trustworthy and capable of handling the responsibilities associated with executorship.

Distribution of assets

Clearly outline how you want your assets to be distributed after your death. Specify who should inherit specific items or properties and include alternate beneficiaries in case your primary beneficiaries predecease you.

Residuary clause

Include a residuary clause to address any assets or property that are not specifically mentioned in the will. This way all your assets are accounted for and distributed according to your wishes.

Funeral and burial wishes

You may include instructions regarding your funeral arrangements and any specific wishes you have regarding your burial or cremation.

Revocation clause

Include a clause explicitly revoking any previous wills or testamentary documents that you have made, ensuring that your current will takes precedence.

Witnesses and signatures

In South Africa, a will must be signed by the testator in the presence of two competent witnesses who are older than 14 years. They must sign in the presence of the testator and each other. People named as heirs, guardians, executors, or trustees (and their spouses) may not sign as witnesses to the will. The will must also indicate the date and place where it was signed.

A will is not valid if these legal requirements aren’t met.

Safekeeping of your will

Your last will and testament must be stored in a safe place. Inform someone in your family or circle of friends where you keep your will. Professionals who draft wills, like lawyers or banks, can keep your will at their premises.

Updating your will

Don’t forget to update your will when there is a change in your personal circumstances, or you acquire or sell assets.

How we can help you

Drafting a will is an essential aspect of estate planning that allows you to protect your assets, provide for your loved ones, and ensure that your wishes are honoured after your death.

Contact us if you’re unsure how to draft a will or have complex estate planning needs. Our legal professionals will ensure that it’s drafted to reflect your wishes regarding the distribution of your assets. Furthermore, we’ll make sure that it’s drafted in a tax-efficient manner to provide financial benefits and maximise permitted deductions.