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If you have a valid will it is of grave importance to mention who you want to appoint as executor. But the question always arises, who? John O. McManus, an estate attorney in New York City said this – “If you appoint someone you love as executor, get your house in order. Otherwise, appoint someone you do not”. And he was not speaking in jest.

As much as we wish this wasn’t true, an executor has a real tough responsibility of carrying out all the directives of a final will and testament. He’s not only responsible for dividing the property to the mentioned beneficiaries, but also to obtain information on potential heirs, collect and arrange payments, and approve or disapprove creditors’ claims, and more if the will is complicated.

Choosing an executor

Deciding on who will be your executor should be done very carefully, especially since that person will be in charge of your last wishes when you’re gone. Many people choose their closest relatives, often someone with a law degree or an accounting background. Though this might be a good choice, you need to be aware that the administration of a deceased estate can be a daunting task, not to mention time consuming and often frustrating.

It has become standard practice to appoint a family member or friend as the executor, especially if you want to save a few bucks. They might not have the knowledge or capabilities to do the job. It could cause undue heartache and stress, as well as have unprepared for financial implications, should they need to hire a professional executor to take over the administration process.

If your desire is to nominate your spouse as executor, you might want to reconsider.  It makes sense for your spouse to be in control, especially if you shared many happy years together. However, if you have both agreed that your spouse would be the best person for the job, it is strongly advised to appoint an attorney or administrator to assist, just in case your spouse is in no state to deal with everything by themselves. After all, your spouse will be affected more than anyone else by your death, and trauma like losing a life partner can take its toll.

You might also need to consider that your spouse could pass away before you do.  There is also the possibility of divorce. Life can change in an instant and we all need to be prepared.

If you don’t nominate an executor, the court will appoint one for you and that person might not be an ideal choice. Be sure to update your will and your executor should any major changes occur.

So what would be your best option?

It is highly recommended to have legal counsel and financial advice. South African courts prefer it if you seek outside professional help when making important decisions about estate assets, especially if the estate is large.

You don’t only need to nominate one executor in your will. Consider nominating a few responsible independent individuals, and include an attorney or administrator to deal with the legal matters.  It will put your mind at ease and take some strain off your loved ones.

Should your choice be a family member or friend, make sure you have discussed this with them beforehand so that they are aware of the process. In fact, find out how the process works and ensure both you and the person you want to nominate understands the role of an executor. Knowing the process will just make it easier for them, or they might decide otherwise.

If you do decide to appoint a professional executor or administrator, you could negotiate the executor fees and have this included in your will as a condition.

Furthermore, save the family possible disputes by being as specific as possible with regards to your personal belongings – such as photo albums and other sentimental and valuable collections. Your will should direct what happens to all personal property, but remember in situations where there’s a question of who should receive something, the executor has the final say.

Whatever your decision, keep in mind a professional executor and/or administrator will make the process so much quicker and smoother, and allow everyone peace of mind. Our main aim is to make it easier for your family and friends in their time of loss. We advise that you go through your will and ensure things are in place for the sake of your loved ones.

Read about what we can do for you on our website –

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)

Pitfalls of appointing the surviving spouse as executor/trix:

Pitfalls of appointing the surviving spouse as executor/trix:

The appointment of the surviving spouse as executor seems to be the honourable and correct thing to do. This in particular where the deceased died without leaving a valid will, or failed to nominate an executor/trix in the last will and testament.

The fact that the surviving spouse normally doesn’t have to provide the Master with security and that it seems to be the next best thing can often become your worst nightmare.

This in particular the case where the spouse is the second or third wife and the deceased divorced wife and children are still around, alternatively where her/his own children will compete for inheritance in the intestate succession.

The problem comes when particularly maintenance claims are submitted against the estate of the deceased by the divorced spouse or children.

It leaves the Surviving spouse in the predicament of rejecting these claims, because it is almost always financially beneficial to do so.

This however is where the clash of interest manifests itself and where cool heads and caution is required.

The remedies available are limited and consist of the following:

• Enter into a suitable redistribution agreement if possible. (possible but difficult with minors)

• Negotiate a suitable solution to all parties.

• Resign as executor/trix and appoint an independent individual. This is the most common and used method, but often goes with a lot of emotion and costs.

• Bear in mind the newly appointed executor will almost always need to provide security, and finds himself in a hot seat to make the correct decision without favouring any party to this dilemma.

With the above in mind it is always good practice to foresee where possible, the potential of a clash of interest and to steer clear of this from the offset.