Once the Testator/Testatrix dies, the administration and management of the estate is handled by an Executor. Estates valued at R250,000.00 or more are required by law to have an Executor. Therefore, it is important that the appointed Executor has the ability to perform the required duties.
How is an Executor Appointed?
An Executor is appointed by the Master of the High Court in one of the following ways:
The Testator/Testatrix may nominate an Executor in his/her Will. Should the Master of the High Court deem the nominated Executor fit to hold office, the Master will issue a "Letter of Executorship".
Where the nominated Executor cannot be found, predeceases the Testator/Testatrix, declines the position, dies/vacates the position during term, or where there is no nominated Executor in the Will, the Master may appoint an Executor through the application of discretion.
Who may be appointed as an Executor?
It is not a legal requirement that the nominated person has prior experience as an Executor or Administrator of estates. A Testator/Testatrix is free to nominate whomever he/she wishes, be it family or friend.
However, at KP Fiduciary Solutions, we advise that in such cases the Testator/Testatrix appoints an independent Co-Executor with some background of estate administration experience, as the process does involve some complexities which may lead to the estate administration being unnecessarily long and overdrawn.
A juristic person may also be appointed as an Executor; however, the juristic person must nominate a natural person who is a member of the juristic person to be be issued with the Letter of Executorship.
Requirements of being an Executor
As stated above, the nominated Executor does not need previous administration experience. However, the Master will require that the nominated Executor provide security for the proper performance of duties, unless the Will exempts the obligation to provide security or the nominated Executor is the parent, spouse, or child of the Testator/Testatrix.
The nominated Executor must not be a disqualified person, e.g. an unrehabilitated insolvent, minor, prodigal, etc.
The nominated Executor must further reside in South Africa.
Administrator/s
Once the Letter of Executorship is issued, the Executor has the option to appoint an Administrator to act on his/her behalf in the administration process. An attorney or accountant is often appointed as an Administrator as they possess the relevant expertise in respect of the Administration of Estates Act, liaising with the Master's office, and the various complexities of the administration process.
An Administrator is appointed by a Special Power of Attorney signed by the Executor, enabling the Administrator to act in the Executor's stead. Whilst the Administrator is allowed to attend to the administration of the estate on behalf of the Executor, it does not absolve the Executor of his/her responsibility, making it essential to appoint an Administrator who has the necessary knowledge and skill to ensure that the administration process is attended to correctly.
Key takeaway: The nomination of an Executor who has both the legal standing and the capability of administering estates is important in ensuring a smooth and speedy winding-down process.
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