A deceased estate comes into existence following a person’s death, whether they leave behind a valid Will or not. The process of winding up a deceased estate can be overwhelming for the deceased’s family. Family member and or beneficiaries are often under the impression that, once there is a death in the family, the estate of the deceased will be released within a short period of time. However, the winding up process can be lengthy, and the length of the process will be determined by, amongst other things, the total value of the estate. There are some steps that you can take to minimise the delay and assist with the speedy winding up of the estate. The steps are as follows:
Consult with the family of the deceased to obtain all necessary information to report the estate to the Master of the High Court, in whose jurisdiction the deceased was domiciled (resided) 12 months prior to his, her or their death. The deceased estate must be reported to the Master within 14 days from the date of death.
The Master will issue a Letter of Executorship if the gross value (before deductions and claims) of the estate is more than R250 000-00. If not, Letters of Authority will be issued, and the estate will be administered according to the provisions of Section 18(3) of the Administration of Deceased Estates Act 66 of 1965.
The Letters of Executorship authorise the Executor to act in respect of all matters pertaining to the winding up of the estate. The duties of the Executor include opening an estate late bank account, notify third parties (banks and SARS) of the death of the deceased, collect all assets, settle liabilities and transfer or sale of assets of the deceased.
On receipt of the Letters of Executorship, the Executor must open an estate late bank account and place a Section 29 advertisement in a local paper and the Government Gazette. This advertisement is for the attention of debtors and creditors of the deceased. It informs them that they are granted a period of 30 days from publication to submit their claims against the estate.
After the 30-day period has elapsed and all claims have been lodged, the solvency of the estate is determined, and the Executor will proceed to draft the liquidation and distribution account. The liquidation and distribution account reflects all the assets and liabilities of the deceased as well as the distribution of said assets to occur. The Will of the deceased will determine who gets what in the end. If there is no Will, the Intestate Succession Act 81 of 1987 will determine who gets what in the end.
The account together with supporting documents must be lodged at the Master’s Office for his approval. The Master will issue a query sheet for any queries pertaining to the account, it is the duty of the Executor to answer these and supply the Master with whatever information required in order to finalise its examination of the account. Once the Master has approved the account, he will grant permission to advertise the account.
The Executor then needs to place the Section 35 advertisement in a local newspaper as well as the Government Gazette. The account will lay open for inspection for a period of 21 days from the publication date. Any interested person may lodge their objection with reasons with the Master before the period for inspection has expired.
If no objections are received and the 21 days has elapsed, the Executor may then proceed to pay creditors and distribute the estate to the heirs in accordance with the liquidation and distribution account.
Lastly, the Executor needs to submit proof to the Master that the estate has been liquidated according to the Will or Intestate Succession Act. These ‘proofs’ may include proof that heirs received their inheritances, creditors were paid and that the property was transferred.
If the Master is satisfied, he will issue a filing slip and the estate is formally closed.
The process from reporting a deceased estate to distribution is lengthy and heirs should always be prepared for this and any delays that may occur whilst the estate is being finalised.
If you need any assistance with appointing an Executor or drafting a Will please contact Mariska Fieberg of ESI Attorneys for professional assistance.
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)