An inheritable estate refers to the total of your assets less all liabilities. Freedom of testation allows you to nominate the heirs to your estate in the unfortunate event of your passing.
Unfortunately many of us fail to draw up a valid will, leaving our net worth over to the rules of our intestate succession law. Generally speaking, an estate devolving according to the Intestate Succession Act 81 of 1987 will be inherited by the spouse and children. Should no spouse or children exist, the intestate estate will be inherited by the deceased’s parents or the decedents of the parents. Should no parents or decedents of the parents exist, the estate will be inherited by the closest blood relation and only in the event where no blood relation is to be found, will the estate be inherited by the State.
Where and how do I report a deceased estate?
The rules prescribing the administration and distribution of a deceased estate may be found in the Administration of Estates Act 66 of 1965 (as amended). Irrespective of whether it is a valid will or the rules of intestate succession determining the heirs, a deceased estate must be reported to the Master of the High Court’s Office within 14 days from the date of death. It is the area within which the deceased usually resided that determines the specific Master’s Office the estate should be reported to, and not the place of death. A spouse or the nearest relative must report the estate by lodging a completed Death Notice and furthermore supplying the Master’s Office with the following documents: an original or certified copy of the relevant Death Certificate, an original or certified copy of the Marriage Certificate (if the spouse is reporting the estate), the original will nominating the executor (person who will manage the distribution of the estate), a completed inventory form listing all the assets of the deceased and a Completed Acceptance of Trust as Executor and certified ID copy of the nominated executor. It is advised to nominate your attorney as the executor of your estate, mainly due to the fact that your attorney has the necessary legal knowledge and expertise. Heirs to the estate may approach the Master of the High Court should they have reason to believe that the executor is not acting in their best interests. One may thus say that the Master oversees and approves the procedures initiated by the executor.
In the event where a valid will does not exist, a completed Next-of-Kin Affidavit must be supplied when the deceased estate is reported, including nominations of the intestate heirs for the appointment of the executor, which may be a friend or a family member. The size of the estate is however of importance as it affects the appointment of an executor. For an estate greater than R125 000, the Master will formally appoint an executor by issuing a Letter of Executorship. Should the estate be less than R125 000, the Master will rather issue a Letter of Authority. This Letter of Authority enables the representative to administer and distribute the estate without following the full and strict procedures set out in the Administration of Estates Act. For example, the Letter of Authority will enable a representative to transfer or sell the vehicle of the deceased to another.
The estate’s creditors must be paid before the balance may be inherited
The role of the executor is to settle the deceased’s debts and responsibilities against the estate and to distribute the balance of the estate to the heirs. Outstanding debts are settled after the executor has published a notice in the Government Gazette and also in at least two other newspapers in the district in which the deceased usually resided. This publication serves to inform creditors of the death and invites creditors to lodge their claims against the estate with the executor. However, before any claims are paid out, the executor must first submit a liquidation and distribution account with the Master. Should the Master find no discrepancies, the executor will be authorised to advertise the account to lie for inspection at the Master’s Office for at least 21 days. This allows for inspection by any person interested in the estate after the executor has published a notice of inspection in the Government Gazette and one or more newspapers within the area within which the deceased operated. Should there be no objections to the liquidation and distribution of the account within this time period, the Master will authorise the executor to pay the estate’s creditors and distribute the remainder of the estate among the heirs.
How do I ensure that my estate is distributed according to my wishes?
Persons of 16 years and over may avoid family disputes by drafting a valid will before their death. A person must be mentally capable of appreciating the consequences of a will and these consequences must fall within the ambit of the law. Additional requirements include the following:
- The will must be in writing and should thus be typed, printed or hand written;
- The person drafting the will, i.e. the testator/testatrix must sign the will at the end of the last page and the testator/testatrix must also sign each and every other page anywhere on the page;
- The testator/testatrix must sign the will in the presence of two or more competent witnesses (above the age of 14 who will be able to testify in a court of law).
It is important to keep your will with your attorney or in a safe place. Remember that your will may not trump your matrimonial property regime. Should you have married in community of property or in accordance with the accrual system, half or a percentage of your estate will first devolve upon your spouse. It is however vital that you draw up a will today in order to ensure the speedy administration and distribution of your estate upon your passing.