ADMINISTRATION OF ESTATES

ADMINISTRATION OF ESTATES

THE WILL

One of the most important documents you will ever sign is your will. A will spells out who will inherit your money and who will get what property – if any – after you die. Even if you are young, you need to have a will, because no one knows what might happen tomorrow.

Having no will means that the state will decide how your estate is divided. Failing to update your will to account for, e.g. a new spouse or children, can be disastrous.

This is what you need to know about drafting your will:

  • You can write your own will, as long as it is legally valid, which means you need two competent witnesses over the age of 16 to sign it. A line should be ruled through any blank spaces so nothing can be fraudulently added to your will. Family members or beneficiaries may not sign as witnesses. All pages to be initialled. You can download a will template, but make sure it’s from a credible source, like funeralguide.co.za.
  • Your will should include not only who will inherit what, but who will act as a guardian if you still have small children. This guardian would be empowered to take immediate charge over your children and avoid them being shunted among family and friends while still having to deal with their grief. It also avoids the costs and difficulties of family members having to approach a court to choose a guardian without any knowledge of your wishes.
  • Be sure to nominate someone you trust to execute your will, that is, to carry out your wishes. Most people nominate their spouse or adult child as an executor of their estate. This enables them the freedom to negotiate a rate and compare and choose the most suitable financial or legal assistance in administering the estate. If there is likely to be conflict among your beneficiaries, however, it is advisable to nominate an independent executor.
  • Should your financial situation be complex, i.e. you have several properties and investments, you have a business, dependants who require maintenance, handicapped dependants, or overseas assets, etc., it is advisable to get expert assistance and nominate an accountant, attorney, financial institution or bank as the executor of your will. A complex estate can take years to wind up. You will also need advice on how to reduce estate taxes.
  • Many financial institutions offer to draft your will for free, but you should be aware that the institution will require to be nominated as executor and will charge a fee, normally about 3.5% of the value of your estate (assets, investments and cash). So the bigger the estate, the bigger their fee.
  • Even though an executor’s fee can, by regulation, go above 3.5%, you can negotiation the fee with an executor at the time of drafting your will. And be aware that the executor’s fee is not all inclusive and excludes certain fees such as conveyancing fees to transfer property. You can reduce executor’s fees by nominating beneficiaries on life and retirement annuity policies.
  • If your children are still minors, or you feel they are not sufficiently responsible, you can include in your will an instruction for the creation of a testamentary trust, which means that on your death, a trustee will manage your assets until a stipulated date when your beneficiaries can take control of them.
  • Without a will, i.e. if you die intestate, the Master of the High Court has to appoint someone to be your executor, and your estate will be dealt with according to rigid and inflexible laws. The basic rule of intestate succession, i.e. who inherits what, is that the surviving spouse and/or children and/or nearest blood relations inherit the estate. Also, your minor children’s inheritance might suffer, since anything they are entitled to receive has to be transferred to the Guardian’s Fund in monetary form, where it will remain until they turn 18. This means that the family home would have to be sold.
  • You should review your will regularly and update it immediately if there is a change in your personal circumstances, i.e. marriage, divorce or birth of children.
  • When making major bequests, it is best to express the gift as a percentage of your total estate and not a fixed sum. The latter won’t take into account your changing state.
  • Copies of wills should be kept with other important documents that will be helpful in winding up your estate such as birth certificate, marriage certificate, antenuptial contract, insurance policies financial statements, share certificates, etc. Give someone you trust the location of this important information.

THE ESTATE

When you die, all your assets have to be wound up and distributed to your beneficiaries by the executor you’ve nominated in your will.

This is what you should know about estates:

  • If the deceased had a funeral policy, and/or life policy, find those first. You will need to cash in a funeral policy quickly to cover the funeral, and the funds from a life policy will also help to keep things financially sound during those first difficult months of grieving. You will need a death certificate to liquidate these. The funeral home will obtain the death certificate, which comes from the Department of Home Affairs.
  • As soon as a death certificate has been issued, start alerting the deceased’s account contractors, e.g. medical aid, cellphone, insurance company and security company, etc., to prevent debit orders going through against their estate unnecessarily. The rest will be taken care of by the executor.
  • The estate must be reported to Master of the High Court within 14 days. Offices of the Master are in your jurisdiction – namely, Pretoria, Johannesburg, Cape Town, Pietermaritzburg, Grahamstown, Bisho, Umtata, Bloemfontein, Kimberly, Mmabatho/Mafikeng, Polokwane, Durban, Port Elizabeth, Thohoyandou and Nelspruit.
  • The appointed executor is usually responsible for this task, but will need various documents, including but not limited to an original death certificate, original will, certified copy of the deceased’s ID, original/certified copy of any marriage certificate, and an inventory of the person’s assets filled in on an official form. The Master’s office will then issue a letter of executorship.
  • If, as the next of kin, you’ve been appointed as the executor and you are not familiar with the estate reporting procedure, it is advisable to engage an agent like a trusted family accountant or lawyer who will then assist to get the letter of executorship. Even if the estate is small, the procedure can be get complicated. You will have to fill in official forms, and draw up a liquidation and distribution account, including assets and liabilities estate duty computation.
  • If, as the next of kin, you’ve been appointed the executor and the estate is worth R 250,000 or more, the Master’s office will normally instruct that you get assistance from a knowledgeable agent such as an accountant or lawyer.
  • Once a final statement of liquidation and distribution has been drawn up, it is taken back to the Master of the High Court for approval. On approval, the executor must advertise the liquidation and distribution account in a newspaper and the Government Gazette to ascertain if there are any objections (e.g. from outstanding creditors).

A reasonably simple estate should be wound up in about 6 months, the more complex estate taking up to a year or longer.

Helen Grange – Cape Argus