When the unthinkable happens it is difficult to deal with what needs to be done in order to report the estate of a loved one who has recently passed away. The purpose of this article is to explain what is required for the estate to be reported and finalised as quickly and painlessly as possible.
A deceased estate comes into existence when a person dies. At death the estate of the deceased is frozen, (If the deceased was married in community of property, the joint estate is frozen) and no one may withdraw funds from the deceased’s bank accounts or deal with any of the estate assets without the necessary permission from the Master of the High Court.
A person dies either Testate (With a valid Will) or intestate (Without a valid Will). An estate must be administered and distributed either in terms of the Will or the Intestate Succession Act, 81 of 1987 and in some cases, it may be administered and distributed in terms of both the Intestate Succession Act, 81 of 1987 and the Administration of Estates Act, 66 of 1965.
Where must the estate be reported?
Where the deceased was living in the Republic of South Africa, 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. For example, if a deceased resided in Delft for 12 months prior to his or her death then the late estate is to be reported to the Master of the High Court in Cape Town.
Where the deceased was not living in the Republic of South Africa at the time of his/her death, the estate may be reported to any Master of the High Court, provided it is reported to only one Master.
When should an estate be reported:
The estate of a deceased person must be preferably reported to the Master of the High Court within 14 days after the date of death. The death can be reported by any person having control or possession of any property or documents that is or intends to be a will of the deceased. An estate should be reported to the nearest Master of the High Court in the area where the deceased last resided.
How to report an estate:
The estate is reported by lodging an affidavit, accompanied by reporting documents discussed in detail herein, wherein it is stated that the “Letters of Executorships” or “Letters of Authority” have not already been granted by any other Master of the High Court in the Republic of South Africa.
The first step in reporting an estate is to make a list of all the assets in the estate to determine if an Executor (if the estate is equal to or more than R250,000.00) or Master’s Representative (estate is less than R250,000.00) should be appointed. This is because the reporting documents differ slightly depending on the value of the estate and the type of appointment required.
What documents will be required in the event of the value of the estate exceeding R250 000?
• Completed Death Notice • Original or certified copy of the Death Certificate • Original or certified copy of Marriage Certificate (if applicable) or acceptable proof of marriage, as requested by the Master. Marriage certificate/proof of registration of a customary marriage/ minutes of a family meeting where proof of registration of a customary marriage cannot be furnished /proof of religious marriage (Muslim or Hindu)/declaration confirming the existence of a same-sex life partnership (if applicable) • A Declaration of Marriage by the Surviving Spouse indicating how the deceased was married • All original wills and codicils or documents purporting to be such (if any) • Completed Next-of-Kin Affidavit - form J192 (if the deceased did not leave a valid will) • Completed Inventory form - form J243, showing all the assets of the deceased Nominations by the heirs for the appointment of an executor in the case of an intestate estate, or where no executor has been nominated in the will, or the nominated executor has died or declines the appointment. • Completed Acceptance of Trust as Executor forms in duplicate by the person(s) nominated as executor(s) (form J190) plus a certified copy of the executors ID document • Undertaking and bond of security – form J262 (unless the nominated executor has been exempted from providing security in the will, or is the parent, spouse or child of the deceased) • If the deceased passed away before 2007: Affidavit by the next-of-kin of a deceased person who has died without leaving a valid will, to the effect that the estate has not already been reported to another Master or service point (if applicable) • Note the "Letter of Executorship" must be obtained from the Office of the Master.
What documents will be required in the event where the value of the estate is less than R250 000?
• Completed Death Notice form - J294 • Original or certified copy of the Death Certificate • Original or certified copy of Marriage Certificate (if applicable) or acceptable proof of marriage as requested by the Master. Marriage certificate/proof of registration of a customary marriage and/or minutes of a family meeting where proof of registration of a customary marriage cannot be furnished; proof of marriage if married by religious rites (Muslim or Hindu); a declaration confirming the existence of a same-sex life partnership (if applicable) • A Declaration of subsisting marriages • All original wills and codicils or documents purporting to be such (if any) • Completed Next-of-Kin Affidavit - form J192 (if the deceased did not leave a valid will) • Completed Inventory - form J243 showing all the assets of the deceased (Proof of the value of the assets must be provided) • List of creditors of deceased (if applicable) • 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 nominated executor declines the appointment. • If the deceased passed away before 2007: Declaration confirming that the estate has not already been reported to another Master's office or Service Point of the Master. • Acceptance of Master’s Directions - J155, completed and signed by the person as nominated above. • Certified copy of the ID of the person to be appointed as Master’s representative. • Note the "Letter of Appointment as Master’s Representative " must be obtained from the Office of the Master.
The above-mentioned reporting documents must be posted to, or handed in at the Master's Office. Faxed reporting documents are not acceptable.
Appointment procedure:
• If the above documents have been completed correctly and lodged with the Master/Magistrate (whatever the case may be): • A file is opened in the name of the deceased. • The documentation is perused by an examiner for correctness. • The will (if any) is considered by the assistant Master and either accepted or rejected.
Process to be followed for the reporting of an estate and the winding up thereof (with estimated turn around times):
• From death to reporting the death to the Master of the High Court and handing in the Will: 2 – 21 days • Waiting for the Master to issue letters of Executorship to the Executor: 2 – 90 days • Placing the advertisement for debtors and creditors: 7 – 14 days • Advertisement time period: 30 – 44 days • Time to finalise drafting the account and lodging with the Master: 7 – 60 days • Waiting for approval from the Master: 14 – 90 days • Preparing to advertise the account: 7 – 14 days • Advertisement period: 21 – 28 days • Distribution of assets: 30 – 180 days • Final requirements and final cash pay-out to heirs: 30 – 180 days
Total for an average estate 6–13 months
How much should an Executor of an estate get paid in South Africa?
The Executor is entitled to the following fee: on the gross value of assets in an estate: 3,5% plus VAT (if registered for VAT); and on any income accrued and collected after the death of the deceased: 6% plus VAT (if registered for VAT).
How long does it take to wrap up an estate?
As a rough guide, a deceased estate can take anything from six months (which is extremely unlikely) to several years to finalise. The time required depends largely on the size and structure of the deceased person’s assets and liabilities. The time taken to wind up an estate will be influenced by the service levels the Executor of the estate experiences when dealing with various institutions such as the office of the Master of the High Court, SARS, financial institutions and the deceased’s employer. The Administration of Estates Act also prescribes certain processes which carry compulsory time periods. The main ones are:
The advertisement period for debtors and creditors; and
The inspection period during which the estate account must be available for inspection at the relevant Master’s Office.
How long must an estate remain open?
The length of time an Executor has to distribute assets from a Will or in terms of an intestate estate varies from case to case, but generally falls between one and three years.
How long does it take to settle a deceased estate in South Africa?
Sometimes, due to a complex asset structure or tax issues, several draft Liquidation & Distribution accounts will have to be drawn before the estate can be finalised. Some reasons for a delay in reporting an estate is as a result of disagreements between family members of the deceased regarding the Will or distribution of the estate. It is important to note that forging, hiding or destroying a Will is not only morally wrong (in that a person who does so will not be entitled to inherit), it is also a criminal wrong (in terms of section 102 of the Administration of Estates Act). A person who is guilty of a crime, who steals, wilfully destroys, conceals, falsifies or damages a Will may not inherit in terms of that Will.
What happens once the whole estate has been distributed?
Once the property has been transferred to the heirs and the last cash has been paid out to the heirs, the Executor can then apply for a filing notice from the Master. Once this has been given, the Executor can then file away the estate file. The Executor then applies for a discharge under Section 56 of the Administration of Estates Act.
Conclusion
As illustrated above, the process of winding up a deceased estate is a lengthy one. As such, family members should always be prepared to care for themselves financially in the interim. Furthermore, some expertise is required in order to complete the process so it is important to seek professional assistance.
We therefore recommend that you contact our office to schedule a consultation and one of our experienced legal practitioners will advise you on all the necessary steps and the legal consequences thereof to ensure that the estate is administered as quickly and painlessly as possible for the grieving loved ones of the deceased.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)
