Duties, Risks & Responsibilities of An Executor

An executor’s powers, duties and responsibilities commence once the Master of the High Court has issued an official letter confirming his/her appointment as executor. (Letter of Executorship/Authority)

DUTIES OF THE EXECUTOR

Your executor is responsible for the administering of the deceased estate in terms of the Administration of Estates Act 66 of 1965 and the duties are set out as follow:

  1. The executor must meet with the family of the deceased in order to obtain all the relevant information and documentation needed, such as the death certificate and a list of the deceased’s assets and
  2. The deceased estate must be reported to the Master of the High Court in the area where the deceased
  3. The executor must proceed to open an estate late bank account once issued with the letters of
  4. The executor must provide notice to the creditors (persons or entities the deceased owed money to) in order to inform them of the death of the deceased. The notice will also request the creditors to institute their claims against the deceased estate within a period of not less than 30 days or more than 3 months after publication of the notice. The notice must be published in a local newspaper and the Government
  5. All existing bank accounts of the deceased must be closed, and proceeds paid into the estate late bank
  6. The executor must determine if the deceased estate has enough assets to pay for the liabilities that forms part of the deceased estate. If there is not enough money to pay some or all of the liabilities, the executor must consider selling some of the assets that form part of the deceased estate.
  7. The executor will be responsible for drafting the liquidation and distribution accounts that must be advertised for the public to These accounts must then be lodged at the offices of the Master of the High Court. These accounts will set out the assets and liabilities, as well as how the deceased estate will be divided and distributed between the heirs of the estate.
  8. After the accounts have been approved by the Master of the High Court, the executor must pay the creditors and distribute the deceased estate
  9. The executor once all funds are distributed, all assets’ transfers, all tax clearances received may then apply for a discharge of duties from the .Master of the High Court

RISKS ASSOCIATED WITH BEING APPOINTED AS AN EXECUTOR:

The risks involved in being an executor differs from estate to estate. If more than one executor is appointed, all are subject to the same risks. In the instance where an agent is appointed to act on behalf of the executor, the appointment of the agent does not relieve the executor of his/her responsibilities or risks. An executor can be penalised and/or imprisoned if he or she does not abide by the laws as set out in the Administration of Estates Act (Act No. 66 of 1965). He/she can also be held personally responsible for the following: (this list of is extensive and we have listed a few)

  1. Misplacing/losing an original last will and testament that was in his/her possession resulting in heirs possibly suffering damages or incurring wasted
  2. Failing to comply with duties as listed on page 1
  3. Failing to check the estate/s of predeceased spouse/s for limited interests
  4. Failing to deal with donations in terms of an Antenuptial contract, or claims from a divorce order, or failing to calculate an accrual claim
  5. Failing to follow due process on pending legal action the deceased initiated during his/her
  6. Failing to follow due process and regulations in the instance that the deceased owned business interests: employees, UIF, severance, business continuity, taxes, VAT returns.
  7. Failing to submit all tax returns to the South African Revenue Services: predeath, post death, estate duty, capital gain tax and donation
  8. Incorrectly identifying the next of kin and proportions payable, incorrect interpretation of the Intestate Succession Act.
  9. Incorrectly distributing cash and transferring of assets to

An executor must be impartial. Neither he/she, nor his/her family, friends, may benefit unfairly (for example from the sale of an asset in the estate). He/she must carry out the instructions in the will, as well as reasonable instructions of the heirs. Quarrels with heirs should not interfere with his or her duties. There must be no conflict of interest.

RESPONSIBILITIES

  1. By signing an Acceptance of Trust, the executor confirms that the estate, being taken on is in accordance with our business model, that the reporting documents are in order and that we are competent to assume that
  2. By signing a sale agreement, the executor confirms that there is no prohibition to the sale; that the sale is in terms of the beneficiaries’ instruction or to settle a cash shortfall; that the relevant legislation has been complied with; that the sale price is market related; that the deed of sale is valid and that we are happy with the financial arrangements for payment and the appointed
  3. By agreeing to an interim advance to an heir/beneficiary the executor confirms that the heir/beneficiary is entitled to the award; that adequate cash has been retained to cover any outstanding amounts due, for example income tax or estate duty; that the heir/beneficiary has completed an Advance Requisition form in respect of the advance and that an Advance Receipt will be
  4. By signing a Liquidation and Distribution Account the executor confirms that all assets are correctly valued, other than those declared in the Executors Certificate, have been dealt with; that the distribution is correct; that the estate duty has been properly calculated on the worldwide estate; that the account correctly reflects how assets have been dealt with and that the Executor’s fee has been calculated correctly.
  5. By signing a Power of Attorney to give transfer the executor confirms that the conveyancer is passing transfer of the correct property to the correct

The responsibility rests with the executor to ensure that whatever is placed before him/her for signature is correct and is supported by accurate, valid documentation. If in doubt, do not affix your signature.

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