Administration and winding-up of a deceased estate

March 1st, 2022
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The administration of deceased estates is governed by the Administration of Estates Act 66 of 1965 (the Act).

On the death of a person, the surviving spouse or nearest relative residing in the district where the death has taken place, shall within 14 days give notice of death substantially in the prescribed form to the Master of the High Court. ‘Where the deceased was living in … South Africa [(SA)], the estate must be reported to the Master of the High Court in whose area of jurisdiction the deceased was living 12 months prior to his/her death’ (www.justice.gov.za, accessed 1-2-2022). Where the deceased was living outside SA at the time of their death, the estate may be reported to any Master of the High Court provided that it is reported to one Master’s Office. ‘Any person who has any document … purporting to be a Will in his possession at the time of or at any time after the death of any person …, shall, as soon as the death comes to his knowledge, transmit or deliver such document to the Master [of the High Court]’ (s 8(1) of the Act).

‘No person shall liquidate or distribute the estate of a deceased person, except under letters of executorship granted or signed … under this Act’ (see s 13).

Reporting a deceased estate

‘The reporting documents will differ slightly depending on the value of the estate and the type of appointment required.

If the … estate exceeds R 250 000, letters of executorship must be issued and the full process prescribed by the Administration of Estates Act must be followed.

However, if the value of the estate is less than R 250 000, the Master of the High Court may dispense with letters of executorship and issue letters of authority in terms of section 18(3) of the Administration of Estates Act’ (https://justice.gov.za, accessed 1-2-2022).

The following reporting documents will be required:

  • Death Notice form – J294.
  • The original or certified copy of the death certificate.
  • The original or certified copy of marriage certificate or acceptable proof of marriage as accepted by the Master or proof of registration of a customary marriage or proof of a religious marriage (Muslim/Hindu) declaration confirming the existence of marriage.
  • All original wills or codicils or any document purporting to be such.
  • Completed next of kin affidavit (J192 form).
  • Completed inventory (J243 form) showing all assets of the deceased.
  • List list of creditors is optional and if available at the time should be listed.
  • Nominations by the heirs for the appointment of a Master’s representative in the case of an intestate estate or where no executor has been nominated in the will or the executor declines the appointment.
  • Acceptance of Master’s Direction (J155 form) or acceptance of trust as executor in duplicate completed by person accepting appointment.
  • Certified copy of the identity document of the person accepting appointment together with recent utility bill confirming their address.

On receipt of the documents, the Master of the High Court will issue a Master’s Direction in terms of s 18(3) or letters of executorship, depending on the value of the estate as reflected in the inventory.

Banking accounts

‘An executor –

shall, unless the Master otherwise directs, as soon as he or she has in hand moneys in the estate in excess of R 1 000, open a cheque account in the name of the estate … and shall deposit therein the moneys which he or she has in hand and such other moneys as he or she may from time to time receive for the estate’ (s 28 of the Act). An executor shall be required by the Master to do so, notify the Master in writing of the bank details wherein such an account has been opened and furnish the Master with bank statements or such other sufficient evidence of the position of the account (see s 28 of the Act).

Notice to lodge claims

Once the letters of executorship have been issued, the executor shall initiate a notice for debtors and creditors to be published in the Government Gazette and in one or more of the newspapers in the area in which the deceased had resided at least 12 months prior to their death. The said notice of debtors and creditors calls on persons having claims against the estate to lodge such claims with the executor within a period not less than 30 days or more than three months from the date of the publication, which includes debtors to pay any claims due to the estate. (see s 29 of the Act).

Liquidation and distribution account

The executor shall after the last day of the period specified in the notice referred to in s 29(1) of the Act and within six months after letters of executorship having been granted or such period as the Master may allow, submit to the Master an account in the prescribed form, supported by vouchers of the liquidation and distribution of the estate (see s 35(1) of the Act). The executor shall also in the prescribed form submit an estate duty schedule.

Inspection of the accounts

The executor’s account shall, after the Master has examined and issued a memorandum dealing with any queries also has authority to advertise the account to lie open at the office of the Master’s Office, as well as the office of the Magistrate of such district where the deceased was residing for not less than 20 days for inspection by any person interested in the estate. The need to lie for inspection with a Magistrate only arises if the deceased did not reside in the city or town where the Master’s Office is situated.

The executor shall give notice of the account to lie for inspection by advertisement in the Government Gazette and in one or more newspapers circulating in the district in which the deceased was ordinarily resident at the time of their death (see s 35(5)).

On expiry of the period, the Magistrate (where the account lay for inspection at a Magistrate’s Office) shall endorse on each account that the account has been laid out for inspection without objection and transmit the account to the Master.

Objections to the accounts

Any person interested in the estate, may at any time before the expiry of the period allowed for inspection, lodge an objection in duplicate with any reasons for objection to any account. The Master shall deliver or transmit by registered post to the executor a copy of any objection with any documents in support thereof. The executor shall within 14 days after receipt of the copy of objection, transmit copies of their comments thereon to the Master.

The Master shall consider the objection and comments of the executor and if the Master finds the objection is well-founded or the account is incorrect they may direct the executor to amend the account or may give such direction as they may think fit.

Any person aggrieved by any such direction of the Master or by the refusal of the Master to sustain an objection so lodged, may apply to the High Court within 30 days for an order to set aside the Master’s decision. The High Court may make such an order as it may think fit.

Distribution of estate

When an account has been laid out for inspection and no objection has been lodged, the executor shall forthwith pay the creditors and distribute the estate among the heirs in accordance with the account. The executor must lodge with the Master the receipts and acquittances of such creditors and heirs. The executor must also lodge a certificate by the registration officer or conveyancer specifying registrations, which have been effected by the executor.

Once the letters of executorship have been issued, all the property of the deceased vests in the executor. In terms of the Act the executor is empowered to take full control of all assets forming part of the estate. The duties of the executor, include selling the property; realising its proceeds; settling debts and paying out the balance to the heirs. The executor stand in the proverbial shoes of the deceased and oversees the deceased’s property by virtue of the empowering provisions of the Act.

Mohammed Moolla BProc (UKZN) LLM (UWC) is a senior magistrate at the Wynberg Magistrate’s Court in Cape Town.

This article was first published in De Rebus in 2022 (March) DR 9.

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