Will – Jan L Jordaan

Demystifying the executor in a deceased estate

November 9, 2017 Jan L Jordaan Comments 0 Comment

During a person’s lifetime s/he will gather assets, in other words, belongings such as a house or a motor vehicle. These assets and liabilities will form part of a person’s estate. At the death of that person, his/her deceased estate must be administered, in other words, divided, distributed and controlled by someone. This person is called an executor.

However, the role of an estate executor and who can be appointed as one has been largely misunderstood.

What does the executor do?

“Executor” is the legal term for referring to the person, or people, nominated in your will to carry out the directives you set out in your will.

This means that it is the executor’s responsibility to disburse your property to the mentioned beneficiaries in your will, but also obtain information on potential heirs, collecting and arranging payments, and approving or disapproving creditors’ claims.
It is the executor’s duty to calculate and pay the estate tax, and to ensure that the correct documentation is filed with the relevant authorities.
The executor is the individual that represents your estate.

Who can be appointed as the executor?

It has become normal to appoint a friend, family member or beneficiary to act as the executor, as they most likely have intimate knowledge of your estate and your affairs, but also, they will not rack up the fees that a legal body might accrue.

However, there is a misconception that you can avoid the fees by appointing a family member as the estate executor, but this could also mean that you are deferring the cost to the nominated family member.

Family members appointed as executors on larger estates immediately find themselves out of their depth, and not only end up hiring a professional executor, but may also pay more for these services than necessary.
A simple way to address this is by appointing a “professional” executor during your lifetime. This allows you to negotiate the executor fees.

If you appoint a family member, make sure that they understand that they will have to appoint a professional agent, and that they should negotiate the fee and be very cautious of agreeing to a fee arrangement in terms of which the professional agent charges their professional fee, instead of the legislated scale.

References:

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)

WHO SHOULD YOU ASK TO BE EXECUTOR OF YOUR ESTATE?

September 19, 2017 Jan L Jordaan Comments 0 Comment

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 – https://www.probatessa.co.za/probates-services.

Can I amend my will?

September 15, 2017 Jan L Jordaan Comments 0 Comment

Having a will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and what to add him/her into your will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.

What is a codicil?

When you want to add something to your will or make a minor change, then you can make use of a codicil. A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

Amendments to a will can only be made while executing a will or after the date of execution of the will. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading. When amending a will, the same witnesses who signed the original will need not sign it.

Must I amend my will after divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.

The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.

This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce.

Should you however fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

References:

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

Owning property without a Will

February 15, 2017 Jan L Jordaan Comments 0 Comment

If you die without a will, an administrator will have to be appointed to administer your estate which will be distributed according to the laws of intestate succession. As such, your assets may not be distributed as you would have wished. It also means that the process will be delayed and that there will be additional expense and frustration which most people would not want to inflict on their loved ones during a time of loss.

Marriage and property

When drafting your will, it’s important to consider the nature of your relationship with your ‘significant other’. If you are married in community of property, you only own half of all assets registered in your name and that of your spouse. Your spouse therefore still remains a one half share owner of any fixed property you may want to bequeath to a third party which could potentially present difficulties.

If you are married in terms of the accrual regime, the calculation to determine which spouse has a claim against the other to equalise the growth of the respective estates only occurs at death. Your spouse may therefore have a substantial claim against your estate necessitating the sale of assets you had not intended to be sold.

Alongside your will, you should also prepare the following in relation to any immovable property you may own:

State where your title deeds are kept and record any outstanding bonds and all insurance
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File up-to-date rates and taxes receipts
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Record details of the leases on any property you have
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State who collects your rent
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State who compiles your yearly accounts
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State where your water, lights and refuse deposit receipts are kept
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If you die without a will

According to the according to Intestate Succession Act, 1987, your estate will be distributed as follows:

Only spouse survives: Entire estate goes to spouse.
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Only descendants survive: Estate is divided between descendants.
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Spouse & descendants survive: The spouse gets R250 000 or a child’s share and the balance is divided equally between the spouse and descendants.
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Both parents survive: Total share is divided equally between both parents.
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One parent: Total Estate goes to the parent.
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One parent & descendants: Half the Estate goes to the parent; balance is divided equally amongst descendants.
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No spouse; No descendants; No parents; but descendants through mother & descendants through father: Estate divided into two parts: half to descendants through mother; half to descendants through father.
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No spouse; No descendants; No parents; No descendants through mother or father: Full Proceeds of the Estate has to be paid into the Guardians Fund in the event of no descendants whatsoever.
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