What is a deceased estate?
After you pass away all your assets, money, movable property and immovable property form part of your deceased estate.
If you nominate beneficiaries, other than your estate, for your retirement annuities, provident and pension funds, endowment policies and life insurance polies at the financial institutions where these investments are held, these funds do not form part of your deceased estate.
The deceased estate is administered in terms of the Administration of Estates Act 66 of 1965. A deceased estate must be reported to the Master of the High Court.
Who is an executor?
The executor is the person appointed by the Master of the High Court to take charge of a deceased estate which is valued above R250,000.00. The Executor is responsible for winding up and administering the estate in terms of the prescribed legal proceedings. The executor is nominated in your will or if you do not have a will, the intestate beneficiaries may nominate an executor.
The administration and winding up of a deceased estate is a specialist area of practice and the executor must have a very good understanding of finances, taxes and the law.
If the value of your deceased estate is below R 250,000.00, the Master will appoint a Master’s Representative to administer your estate. The Master’s Representative is nominated in your will or if you do not have a will, the intestate beneficiaries may nominate a Master’s Representative.
Do I need a will?
If you do not have a will, you will forfeit the right to choose who will inherit your estate. Without a valid will your estate will be distributed to the heirs determined by the Intestate Succession Act of 1987. You will also loose the right to nominate an executor of your choice.
Many complex problems may arise in the administration and distribution of intestate estates which can be avoided should you have a valid will.
Can I draft my own will?
There is no rule or law that prohibits you from drafting your own will. However, there are many legal formalities, relating to the form of your will and how it must be signed and witnessed that must be complied with in order for your will to be valid.
In addition there are also many substantial requirements and other legal and tax implications to consider when you draft a will.
These formal and substantial requirements may be overlooked if professional advice is not sought.
Do I have the freedom to bequeath my estate to any beneficiary of my choice or am I obliged in law to benefit certain persons, for example my spouse and children?
In South African Law, Sout African Citizens have a basic right of freedom of testation subject to certain restrictions. This means that you may within certain bounds nominate any beneficiary of your choice to inherit your estate.
The restrictions include the following:
- Agricultural property (farm land) may not be transferred to more than one beneficiary without the consent of the Minister of Agriculture;
- A surviving spouse may have a claim for maintenance against the deceased estate (the Constitutional Court has made an order requiring Parliament to amend the relevant legislation to also include maintenance claims by life partners, but these amendments have not yet been passed);
- If a testator/testatrix is married out of community of property with the application of the accrual system, then the surviving spouse may have a claim for half of the difference between the accruals of the survivor’s estate and the deceased estate (if the surviving spouse’s estate is the smaller of the two);
- Limitations are also imposed in terms of Common Law against provisions that may be impossible, unlawful, immoral and against public policy (i.e. unfair discrimination based on gender -King v De Jager 2021 5 BCLR 449 (CC));
- Forced heirship rules of certain foreign countries may apply to immovable assets located in a foreign jurisdiction.
Contact Bardine Hall, Goldberg & de Villiers today to assist you to draft your will.
Contact details: bardine@goldlaw.co.za / 0415019800.