Testate Succession

by Johan Oosthuizen


Testament

The dreaded deceased estate administrative nightmare and estate duty, two of the many reasons why we at Destinata, recommend that your entire estate is held in your inter vivos or “living” Trust Structure.  

 

Life has no expiry date and the death of a loved one is a reality that we all will have to face in our lives at some stage. Most of our clients would have at least started the process of estate eradication to ensure all their valuables are held in Trust, but if you have not done so, chances are you will leave something of value behind in your personal estate which has to be redistributed.

Here are some tips on deceased estate administration which we hope can be of some aid.  We strongly advise against attempting to finalise a deceased estate without any assistance if you are unfamiliar with the process.

A deceased person can pass away either intestate or testate.

Testate succession happens when the deceased left a legally valid will which in turn regulates the manner and form in which his/her estate will devolve.  The testator or testatrix nominates the person(s), be it a legal or natural, who will inherit from his deceased estate. The deceased would normally have nominated the executor who will be responsible for the administration of his/her estate. We strongly suggest that you have a will in place to regulate the succession of your estate, feel free to contact your independent trustee should you not have a will or be in possession of an outdated will.

Intestate succession happens when a deceased left no valid will, this type of inheritance is regulated by the Intestate Succession Act. Please follow the link below for more information on intestate succession: http://www.justice.gov.za/master/m_deseased/deceased_intestate.html

Testate Succession

  1. The first step will be to report such estate to the Master's office in the prescribed form to obtain letters of executorship. The prescribed forms change from time to time; the following link can be used to download all relevant documents. Please follow this link to see how one should report a deceased estate: http://www.justice.gov.za/master/m_deseased/deceased_how.html
  1. The next step will be a notice to creditors. Once the Master has issued letters of executorship, the executor must place a notice in the Government Gazette and a local newspaper circulating in the district where the deceased was ordinarily resident. This notice calls on all creditors of the estate to prove their claims within a certain period of time. This period must be not less than 30 (thirty) days and not more than 3 (three) months. If the deceased resided in more than one place during the 12 (twelve) months prior to death, the notice must appear in newspapers circulating in each of the districts he or she resided in during the said 12 (twelve) months.
  1. The executor will have to open a cheque account in the name of the estate and notify the Master in writing of where such account is held, the account number and the current balance of such account.
  1. The executor will have to decide on a method of liquidation of the estate if it need be that liquidation should take place (often the case with intestate succession). 

    There are five methods of liquidation that the executor can decide upon depending on the surrounding circumstances, each of the following methods will contain a link routing the reader to further information: 

    4.1.      Taking over by surviving spouse

    4.2.      Partial sale of assets

    4.3.      Sale of assets

    4.4.      Award in Specie

    4.5.      Redistribution agreements

  1. The executor will have to draft a liquidation and distribution account and lodge this account within six months of his/her appointment as executor with the Master. This account will balance claims against the estate and all other expenses with claims in favour of the estate and the estimated value of assets within the estate (the Master may request a sworn valuation on certain property).
  1. The Master will inspect the L&D account; this will take up to eight weeks before a response from the Master can be expected. Once the master is satisfied with the L&D account the executor makes it available for inspection by concerned parties for at least 21 days. The Master refers any objections to the executor for a response. Once the Master has received the executor's response, he will make a decision which must be obeyed by the executor.
  1. As soon as all of the above is complied with, the executor will execute all debts and the residual will be paid over to all beneficiaries as directed by the deceased's will. 

In light of the above, we urge you to review your current personal estate and discuss this with your Independent Trustee to ensure you have taken all measures to eradicate your personal estate. Enjoy the benefits of having your assets in Trust while you are still alive and have peace of mind that you don't leave your loved ones with this tedious administration task on their hands.

If you'd like us to put you in contact with Treasury Trust Services, please send an email to services@wealthmastersclub.com.




 
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