• Check the will, perhaps provision was made for an alternate executor.
• Failing the above, the heirs can agree on any new executor. First establish who the heirs are in terms of the intestate succession or in terms of the will. They will all have to sign a nomination form nominating the new executor and submit this to the Master. If all the heirs are unanimous in their nomination, the Master will normally accept this nomination. If the heirs cannot reach consensus, the Master may convene a meeting with the heirs to obtain consensus. The Master will give preference to the following people, in order: The surviving spouse or his/her nominee; an heir or his/her nominee; a creditor or his/her nominee.

An Executor is the person who will be responsible for the administration of your deceased estate. He will take control of your assets, settle your debt, finalise your tax and other affairs and distribute the remainder to your heirs. Therefore, choose a trustworthy executor with the necessary expertise so that he is properly equipped to administer your deceased estate.

• This can be any person, even the surviving spouse, an heir or a family member.
• The person must be over the age of 18 and have contractual capacity.
• The person must not:
  • have been a witness to the will,
  • have signed the will on behalf of a testator,
  • have written out any part of the testator’s will in his own handwriting, or
  • be a spouse to any person of such a person listed above.

You have two options:

• You can nominate the surviving spouse or a family member or friend of the deceased to be the executor of the estate.

The positives are – You know the executor is trustworthy, the executor can shop around for an attorney to assist, often negotiating fee reductions. Should an issue arise, the executor can dismiss the agent and appoint a new agent, relatively easily.

The negatives are –  They do not have the necessary experience and skill to administer the estate, necessitating the appointment of an agent. The more people involved in the administration process the more paperwork it entails. With the rise in FICA compliance and fraud, both the executor and the agent will have to provide fica documentation. The surviving spouse or family member or friend may not want the additional hassle of attending to the administration of your estate.

• You can nominate a trusted attorney.

The positives are – You pick an attorney you know and trust. They will have the necessary experience and skill to administer the estate. The administration process will be easier because it involves less paperwork.

The negatives are – Because a fee reduction has not been negotiated when the will was drafted, you may less likely be able to negotiate a fee reduction.

Such an estate is an 18(3) estate and the administration thereof will follow a much simpler process.  There is no formal procedure to adhere to, no accounting to the Master, no advertising in the Government Gazette and no drawing up of a Liquidation and Distribution account.

The estate will be reported to the Master, who will issue the nominated executor (here referred to as the Master’s Representative) with Letters of Authority (similar to the Letters of Executorship). Thereafter the Master will close their file and regard it as finalised.

Empowered by the Letters of Authority, the Master’s representative will now have the authority to close bank accounts, pay creditors and transfer movable assets and ensure compliance with the provisions of the will or the intestate succession act.

Top tip: The Letters of Authority will list and specify the value of the assets and liabilities. Make sure, when reporting the estate to the Master, that you give them information as accurate as possible. If an asset is improperly listed or not listed at all on the Letters of Authority, you will not be authorized to deal with it.

An executor is entitled to the following fee for administering a deceased estate:

• If the fee is fixed in the will, the executor is entitled to that amount alone.
• If the will does not fix the amount of remuneration, then the executor is entitled to receive remuneration according to the prescribed tariffs. This is currently 3.5% on the gross value of assets and 6% on income collected after death.
• In rare cases, the master may reduce or increase the remuneration subject to the facts of the case.
• If the executor is VAT registered, he is obliged to charge VAT on his remuneration.
• If the executor, in addition to the work in the ordinary scope of an executor, also performs other duties, such as transferring immovable property, these conveyancing fees can also be charged.

If an executor, such as a surviving spouse, appoints an agent to deal with the administration on his behalf, then the executor will still be entitled to his remuneration. The fee payable to the agent will be contractually agreed upon between the executor and the agent. Generally the agent’s fee will be the same as that of an executor and will be paid directly by the estate.

For an estate gross value of:

• R0 – R250,000 = R0
• R250,000 – R400,000 = R600
• R400,000 and above = R600 plus R200 for each R100,000 above R400,000
• Subject to a maximum of R7,000

Providing Security means that the estate’s administration is insured by an insurance company.

Premiums are payable by the estate as an administration expense and the amount thereof is proportionate to the value of assets in the estate.

Any losses suffered by heirs and/or creditors as a result of the executor’s neglect in the performance of his duties, can then be recovered from both the executor and the insurance company.

All executors must provide security except if:

• the executor is exempted therefrom by the will (generally found in most wills)
• the executor is a surviving spouse, parent or child of the testator

Obtaining security is an extra step in the administration process and may cause a delay. The premiums may also be a significant expense, ultimately reducing the inheritance(s) payable to heir(s).  Testators generally nominate a trusted person as executor in their will, reducing the need to have insurance in place.

Immovable property can be registered in the name of the minor; however, it cannot be alienated or mortgaged without the authorisation of the court or the Master.

All other property

1. The natural guardian of a minor shall be entitled to receive movable property to which the minor is entitled, for and on his behalf (43(1) and 43(2) of Administration of Estates Act):
   • unless the will stipulates otherwise (e.g. provision is made for a testamentary trust)
   • No sum of money is to be paid to the guardian unless the will expressly stipulates to the contrary.
   • The guardian is required to provide security to the Master’s satisfaction, unless:
     • The will stipulates otherwise; or
     • The amount does not exceed R20,000 if the Guardian provides an acceptable Maintenance Certificate. (Chief Master’s Directive 2 of 2019)

(Note: Security may prove costly or difficult or impossible to obtain for the Guardian.)

2. Where none of the above is possible the inheritance of the minor is to be lodged with the Guardian’s Fund in the Master’s office pending the minor attaining the age of majority. (43(6) of Administration of Estates Act)

If you pass away without having a valid will in place, you die wholly intestate. This means the Intestate Succession Act comes into operation, and the distribution of your entire estate will be made according to the provisions of this Act.

It is also possible for your estate to devolve partially testate and partially intestate. This can occur if, for example, some of the provisions in your will are unclear or impossible to carry out or if your will only provides for the devolution of some of your assets.

For more detail on how intestate succession practically works, click here.

Please contact us for any other queries you may have.