Finalising the Estate If the Deceased Had a Will
March 24, 2016
There is no preferred way of dying but in terms of what is done with the deceased earthly possessions after they’re gone then finalising the estate if the deceased had a will is ideal. This means that the person left behind a valid Will that outlined clearly what is to be done with all the property they leave behind. But this is not usually the case in South Africa due largely to relatively low literacy levels and cultural norms. Finalising the estate with a will is a luxury in SA.
In the case where there is a will, three important actors come into play when finalising the estate namely: the Executor, the family of the deceased and the Master of the High Court.
This is the party expressly named in the Will to oversee its execution. Their first obligation is to inform the Master of the High Court of the district of the deceased’s residence within a specified time frame (14 days after death). In performing this function the Executor will need a number of supporting documents.
- A copy of the deceased’s national ID that has been certified
- A declaration of the deceased’s marital status
- Marriage certificate if the deceased was married. A certified copy of the same is also required.
- Death certificate of a deceased spouse where applicable along with a certified copy.
- The deceased’s bank account statements up to the time of their death. Note that statements that are not up to the date of death are not considered valid.
- A duly filled inventory form which lists all the deceased’s assets including house, cars, salary, etc.
- Originals of all Wills
- A duly filled death notice or the J294 form.
- A complete list of all the deceased person’s creditors including for car loans and mortgages.
- An Acceptance of Trust form, or J190, filled by the appointed Executor and presented in duplicate.
- Executor’s ID (certified copy).
- Undertaking and bond of security: This form, also known as J262, ensures that short term insurance has been undertaken to cover the deceased’s property for the period of executorship. This is only when the Executor is not a member of the deceased’s immediate family or expressly exempted from providing security in the Will.
- A signed declaration ascertaining that the estate is not being pursued by another Master of High Court.
Besides ensuring the above documents are provided in the required order, the Executor is also charged with contacting all concerned parties in the Will. To this end he or she oversees the publishing of an announcement in the legal notices section of a local daily based where the deceased was living. The announcement will include a notice of the death as well as the parties involved in the Will. The Act requires the noticed to be published in the places where the deceased had creditors or where untraced family members could be residing.
In the process of finalising the estate the Executor also needs to get directly in touch with all the parties affected by the will including heirs and creditors informing them of what the Will says regarding them. He or she will follow through to ensure that everything appointed in the Will is carried out fully and all necessary legal measures are observed.
Should the named Executor be an individual and not a bank or similar organization, they will need to inform the bank where the deceased had an account that they have been appointed. Before the bank grants access to the deceased funds they will need to see the original death certificate and the Will as well as a confirmation of the account number. The appointed Executor will also need to produce their own ID and some proof of their residence such as a utility bill.
Lastly, an Executor needs to come up with a Liquidation and Distribution Account and submit to the Master of the High Court for cross-examination. This account not only details how the deceased’s estate will be distributed among beneficiaries, it shows the taxes that are due.
Master of the High Court
In each of the country’s nine provinces there is a High Court in which there is a senior official named the Master of the High Court. Among the duties of such an official as relates to death include receiving death notices and filing records of the estates of the deceased. They also issue letters of Executorship to all parties appointed in that capacity. This letter authorizes an individual or organization to be the representative of the deceased when administering their remaining assets.
One of the first duties members of the family of a deceased person should do is to inform the Executor. They can make the work of finalising the estate by the Executor easier by maintaining an orderly record of forms, reference numbers and contacts he will need to perform his duties. They can also make the transfer of ownership of assets like vehicles and TV licenses easier.
Another important function family members can perform is to close bank accounts of the deceased so as to prevent them being the target of fraudulent activity. To do this they need to obtain the ID book of the deceased from the undertaker or Department of Home Affairs official ensuring each page has been stamped ‘deceased’. A copy of the death certificate that has been certified as well as its original together with the original Will will also be needed by the bank.
Steps in Finalising the Estate
This process will vary depending on the value of the deceased’s estate. These are the requisite steps if its value is less than R125,000:
- The process of valuing the property of the diseased can begin immediately the Executor is empowered to act by the letter from the Master of the High Court.
- The Executor will then determine of the assets left by the deceased are adequate to cover their remaining debts as well as cover funeral and burial expenses.
- Should the deceased’s assets be inadequate to pay out their obligations, the Executor will need to discuss with the beneficiaries of the deceased’s estate and decide how the debts will be sorted out. Liquidation of assets may be necessary and this may reduce their benefits.
- Wind up the estate by paying out estate duties and taxes and then giving each beneficiary what is stipulated in the Will. Before family members receive their share of the estate, any donations or bequests mentioned must be first paid out.
If the value of the estate is more than R125,000 the Executor needs to take the following steps:
- Publish a notice in the newspapers of the locality where the deceased last lived as well as in the Government Gazette asking all interested parties in the will to contact him/her in the next 30 days.
- Process of valuation of the deceased’s assets, including both movable and fixed assets can then begin.
- Calculate if the deceased’s estate has enough money to settle their outstanding debts and meet the cost of a funeral and burial.
- If the funds are inadequate the Executor will make arrangements with the beneficiaries of the estate to make sure these obligations are met.
- Determine what the tax situation of the deceased is.
- After the Executor has drawn up a Liquidation and Distribution Account and the Master of the High Court has approved it, he must publish a notice in the Government Gazette and in the newspapers of the deceased’s most recent locality. This will be to inform everyone that accounts are ready for scrutiny and invite anyone with objections to lodge a complaint with the High Court in good time (21 days).
- If any objections are raised the Master of the High Court will direct the Executor to address them and revert back to him/her for a final decision. Depending on how quickly a final decision is arrived at this step can take four weeks or more.
Depending on the complexity of the process, the above steps can take anywhere between six weeks and six months.
After all objections have been addressed regarding finalising the estate the bank will open an Executor’s account through which the Executor will first settle any estate duties and taxes. They will then remit any donations or bequests stipulated in the Will before distributing funds and assets to family beneficiaries according to the guidelines in the Will. The Executor will thereafter report to the Master of the High Court that they have done as instructed in the Will and terminate their office.
Estate duty and taxes
The government levies a duty on the property of any citizen who dies in accordance with the 1955 Estate Duty Act. It is however only activated if the dutiable estate amounts to more than R3,500,000. This is a complicated process especially if huge sums are involved in finalising the estate and the Executor may require guidance if they are not a professional accountant. However, the Executor himself must ensure that the duties and taxes are paid within thirty days of the valuation process being completed. The valuation process itself can take up to one year after the date of death.
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All info was correct at time of publishing