A last WILL and TESTAMENT is a document drafted, signed and duly attested to by the testator/testatrix during that person’s lifetime. The terms of a WILL indicates the following;
- Who the representative/Executor of the estate will be after death,
- Who the heirs of the deceased’s assets are,
- If the testator would prefer to be cremated or buried and
- Any other lawful instructions and wishes to the heirs/estate representatives to be carried out after death.
What if there’s no WILL and TESTAMENT?
If a natural person passed away without a valid last WILL and TESTAMENT the Intestate Succession Act 81/1987 (as amended) is the applicable legislation which will determine who inherits the assets in the deceased.
- All the heirs of the estate must agree to nominate an Executor/Executrix/Master’s Representative to act on behalf of the estate and administer and wind up the assets of the deceased. More than 1(one) person can be nominated as the Executor.
- The deceased’s assets must be distributed between all the heirs, in terms of the provisions of the above Act.
After a natural person’s death,
- the assets of the deceased must be collected,
- the debts, liabilities and taxes of the deceased must be settled, and
- whatever assets of the deceased remains, it must be distributed to the heirs.
If there are not enough cash in the bank accounts of the deceased or the estate account, to settle the debts, liabilities and taxes of the deceased, the assets of the deceased must be sold and the proceeds of the sale of the assets distributed between the heirs, after the debts are settled.
Process to follow the death of the testator.
- When a natural person passes away, a death certificateis applied for to the Department of Home Affairs, by the deceased’s next of kin.
- The death must then be reported to the Master of the High Courtin the area where the deceased normally resided in the 12 months preceding his/her death.
- The Master will issue a Letter of Executorship/Authorityshould all the documents and paperwork be provided to their offices. There is an office of the Master of the High Court in every province of the Republic of South Africa.
What is an Executor/Estate representative?
The Executor/Executrix is the person nominated by the testator in his last WILL and TESTAMENT, to act on his/her behalf after death, to wind up their affairs, i.e.
- Collect all assets
- Settle the liabilities, debts and last taxes of the estate and
- Distribute the assets to the heirs
Said person only acts in a representative capacity on behalf of the deceased’s estate to administer the deceased’s assets.
Should the estate of the deceased have a total asset value of less than R250 000.00, then the nominated representative of the deceased’s estate is called the Estate Representative and a Letter of Authority is issued by the Master of the High Court in terms of Section 18(3) of the Administration of Estates Act 66/1965 (as amended), to grant the relevant authority to said person, to act on behalf of the deceased after death.
Should the Estate of the deceased have a total asset value of more than R250 000.00, then the nominated representative of the deceased’s estate is called the Executor/Executrix (depending on said person’s gender). A Letter of Executorship is issued by the Master of the High Court in terms of the above Act, to grant said person the relevant authority to act on behalf of the deceased’s estate.
Duties of the Executor of the Estate
The Letter of Executorship/Authority issued by the Master of the High Court, is the document that appoints a representative of the deceased’s estate, to do what needs to be done, to wind up the estate.
It is the duty of the representative of the estate to
- settle the debts, liabilities and taxes of the estate,
- collect all assets and
- distribute the assets to the heirs in terms of either the deceased’s Will or the Intestate Succession Act 81/1987 (as amended)
If the deceased passed away without leaving behind a valid WILL, then sometimes this situation creates a dispute between the heirs. The assets will have to be distributed between all the intestate heirs of the estate. This is not always practical, for example, inheriting a property together with your siblings, which is difficult to manage. Most siblings don’t get along and if they live in different parts of the world it makes it even more difficult.
In most cases with an intestate estate, the heirs enter into a separate agreement to redistribute the assets between them, but then again, all the heirs and the Master of the High Court must agree to this arrangement.
Who chooses the representative of the deceased’s estate?
The testator chooses the person to represent his estate after death. This person is nominated in the WILL and TESTAMENT.
Everyone should have a valid WILL and TESTAMENT drafted by a qualified person and duly signed and witnessed prior to death, for the following reasons;
- to appoint a representative of the estate to administer the estate assets
- to avoid disputes and squabbles between the heirs as to who is entitled to which assets.
What does it cost to have a valid WILL and TESTAMENT drafted and signed?
Most attorneys draft a WILL free of charge, but any qualified person asked to assist the Executor to wind up the estate, is entitled to charge a fee of 3.5% of the estate asset value.
IN SHORT
Having a valid last WILL and TESTAMENT is essential to estate planning and making sure assets that the deceased accumulated during his/her lifetime, does not have to be sold just to settle taxes and estate expenses. As in life, there are taxes that automatically become applicable once a natural person dies.
a WILL also ensures that the testator’s wishes are carried out after death. The purpose is to avoid family squabbles regarding the assets and/or who should be the representative of the estate.
First attend to your estate planning, because then drafting the WILL and TESAMENT will be simple and all the important aspects are considered.
Disclaimer: Although I am an attorney by trade, I am not YOUR attorney. This article is for informational and educational purposes only, does not constitute legal advice and does not establish any kind of attorney-client relationship with me or my firm. I am not liable or responsible for any damages resulting from or related to your use of this information.