Written by Mari van der Walt
31 October 2022

The passing of a loved one can be a traumatic and uncertain time in a person’s life. To assist the deceased’s family and friends during this challenging time, an executor is appointed to administer the deceased’s estate. The nomination and appointment of an executor are thus of the utmost importance, as it will provide you with peace of mind that your affairs will be dealt with in accordance with your wishes upon your passing.

Who Chooses an Executor in a Deceased Estate?

A testator or testatrix, namely the person concluding a Last Will and Testament, can nominate the person of their choosing as the executor of their estate in their will. Should the deceased pass away without having a valid Will and Testament in place, the deceased’s family members can nominate a person they believe is suitable and capable of assuming the position of executor.

In addition to the above, it is important to note that the Master of the High Court must formally appoint the nominated executor before they can assume the title and commence with their role as the executor. This is done by issuing a Letter of Executorship upon receipt of all the reporting documents.

Who Can be Nominated and Appointed as an Executor?

The law allows for a layperson (i.e. a friend or family member without legal background) to be appointed as an executor. Where the estate exceeds the amount of R250,000.00, it is practice that a professional person, such as an attorney or accountant, be appointed as the executor.

Who Cannot be Appointed as an Executor?

Specific categories of people are exempt from being appointed as an executor, including:

  • Minor children (any person under the age of 18 years);
  • A mentally unsound person;
  • A person under curatorship;
  • An unrehabilitated insolvent;
  • A juristic person (i.e. a company);
  • A partnership;
  • The Master of the High Court;
  • A person who is disqualified in terms of common law (i.e. the killer of the deceased);
  • A person who signed the Last Will and Testament on the testator’s behalf and as a witness; and
  • A person who has handwritten the Last Will and Testament of the deceased.

What Factors should be Considered when Nominating an Executor?

  • Knowledge of the Law of Succession: When choosing an executor, it is essential to remember that the executor is expected to interpret the Last Will and Testament of the deceased as well as the applicable legislation, such as the Intestate Succession Act 81 of 1987, the Wills Act 7 of 1953, and the Administration of Estates Act 66 of 1965. In light of the aforementioned, it may be advantageous for the nominated executor to have a legal background and legal knowledge.
  • Accessibility to the Office of the Master: The executor will have to attend to the office of the Master on a regular basis to submit all the required documentation and answer any possible queries from the Master. As such, flexibility and accessibility should be considered when nominating an executor, as well as an understanding of the Master’s inner workings.
  • Financial background: A financial background may also benefit the executor, as they will need to draft the liquidation and distribution account and calculate all estate duty, capital gains tax, the income tax payable, together with any other associated costs.
  • Security: A final consideration is security; the Master may require security from the executor for the estate’s total value. The executor may be exempt from furnishing security in terms of the deceased’s Last Will and Testament or if the executor is the deceased’s parent, spouse or child.

What are the Main Responsibilities of an Executor in a Deceased Estate?

  • The executor needs to apply for and obtain the letter of executorship, alternatively the letter of authority, to commence with the winding up of the estate. It is imperative to note that the estate may not be liquidated or distributed prior to the executor obtaining such a letter from the Master.
  • The executor must give proper notice to potential creditors, informing them of the deceased’s passing. Furthermore, creditors should be afforded an opportunity to submit their claims against the estate.
  • The executor must take control of all assets and liabilities in the deceased’s estate; this entails safeguarding the assets and determining the value of all assets in the estate.
  • The executor must collect proceeds on behalf of the estate by leasing immovable property and selling certain assets.
  • The executor might need to defend legal action against the estate, alternatively commence with legal action if money is due and owing to the estate.
  • In conjunction with the aforesaid, the executor will have to draft the liquidation and distribution account and submit same to the Master for final approval.
  • Upon approval of the Liquidation and Distribution Account, the executor needs to ensure that all the creditors are paid and that the account balance and assets are distributed according to the deceased wishes in their Last Will and Testament. If the deceased fails to leave a valid will, assets will be distributed in terms of the provisions of the Intestate Succession Act 81 of 1987.

Can more than one Executor be Appointed?

Yes, more than one executor can be nominated. Should the Master appoint both executors, they will be co-executors. The co-executors will have to execute all duties collaboratively and be liable to the Master for all actions performed. Upon finalisation of the estate, the executor’s remuneration will be divided between the co-executors in equal shares.

Can the Nominated Executor Appoint Someone Else?

Yes, it is possible for the nominated executor to appoint an agent who can administer the estate on behalf of the nominated executor.

This usually occurs when a layperson is nominated as the executor, and the layperson appoints an attorney to oversee the administration of the estate on their behalf. Usually, the reason for such a delegation is that the attorney has the necessary knowledge and expertise to handle the administration of the deceased estate more timeously and effectively.

Are there Consequences if the Executor Fails to Act in Accordance with their Duties?

Yes. The degree of offences and the accompanying penalties are set out in Section 102 of the Administration of Estates Act 66 of 1965. An executor can be imprisoned for up to 7 years for certain offences.

The lodging of a deceased estate is an intricate and technical process. If you require assistance, contact Burger Huyser Attorneys, as our deceased estate attorneys have the expertise and experience in lodging deceased estates and performing the necessary duties of an executor or agent.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE