A will explains to your friends and family what should happen to all your possessions, belongings and property after you passed away. It also reduces the amount of inheritance Tax that might be payable on the belongings and property you leave behind. It further ensures that your children and family that depend on you financially are well looked after.

Any person 16 years and older are competent to make a will to determine how their assets and belongings should be distributed.

The law will decide who receives your belongings, money and property. Your wishes will not be granted and you will die intestate in terms of the Intestate Successor Act 1989 (Act 81 of 1989) and the administration on thereof as prescribed by the Administration on of Estates Act 1965 (Act 66 of 1965)

Any professional individual can assist with the drafting of your will.

Any person older than 14 years. The will must be signed at the same me as the testator. Any person/s who is/are named / listed in your will to inherit from your estate may NOT sign as a witness.

The will must be a document originally signed by the testator and witnessed on all pages.

• Property or any part of a property registered in your name.

• Vehicles registered in your name.

• Investments in your Bank or any other institutions.

• Shares or any interest in companies.

• The appointed executor/s or executrix /s.

• The appointment of a Trustee or a Family Trust.

• The appointment of a Director of any company owned by you.

• Specific inheritance of goods or assets.

You may appoint any person to act as executor/executrix of your deceased estate. You may also appoint any third party or a non-emotional professional person.

The estate is usually reported by the nominated executor or his appointed Agent to the Master of the High Court in whose area of Jurisdiction on the deceased was living at the time of death. The death must be reported within 14 days from date of death.

A. Where the value of the estate exceeds R 250 000.00, the following reporting documents will be required:

• Completed Death Notice form – J294.

• Original or certified copy of the Death Certificate and certified ID document of the deceased.

• Original or certified copy of Marriage Certificate (if applicable).

• All original wills and codicils or documents intended as such (if any).

• Next-of-Kin Affidavit – J192 (if the deceased did not leave a valid will).

• Completed Inventory form – J243.

• Nominations by the heirs for the appointment of an executor in the case of an intestate estate or where no executor has been nominated in the will or the nominated

executor has died or declines the appointment.

• Completed Acceptance of Trust as Executor form – J190 in duplicate by the person(s) nominated as executor(s) and a cer fied copy of the photo page of the executor’s ID document.

• Undertaking and bond of security – J262 (unless the nominated executor has been exempted from providing security in the will, or is the parent, spouse or child of the deceased).

• Affidavit by the next of kin of a deceased person, who has died without leaving a valid will, to the effect that the estate has not already been reported to another Master or Service Point (if applicable).

• Declaration of subsisting marriages.

B. Reporting documents where the value of the estate is less than R 250 000.00

• Completed Death Notice form – J294.

• Original or certified copy of the Death Cer ficate and ID document of the deceased.

• Original or certified copy of Marriage Certificate (if applicable).

• All original wills and codicils or documents intended as such.

• Next-of-Kin Affidavit – J192 (if the deceased did not leave a valid will).

• Completed inventory form – J243.

• List of creditors of deceased (if applicable).

• Nominations by the heirs for the appointment of a Master’s Representative in the case of an intestate estate or where no executor has been nominated in the will, or the nominated executor declines the appointment.

• Undertaking and acceptance of the Master’s direc ons form – J155.

• Completed Acceptance of Trust as Executor form – J190 in duplicate by the person(s) nominated as executor(s) and a cer fied copy of the photo page of the executor’s ID document.

• Undertaking and bond of security – J262 (unless the nominated executor has been exempted from providing security in the will, or is the parent, spouse or child of the deceased)

• Affidavit by the next of kin of a deceased person, who has died without leaving a valid will, to the effect that the estate has not already been reported to another Master of Service point (if applicable).

• Declaration on of subsisting marriages.

After the repor ng of the deceased estate, the Executor determines the value of the assets and liabili es in the deceased estate as at the date of death. After the Le ers of Executorship have been issued, the Executor must publish a no ce in the Government Gaze e and in one or more newspapers circula ng in the district in which the deceased was ordinarily resident, calling on all persons having claims against the deceased estate to lodge the claims with the Executor within a specified period, which is usually 30 days from the date of the latest publication. After that, but within a period of 6 months after Letters of Executorship have been issued or such further period as the Master may allow, the Executor is obliged to submit to the Master an account of the liquidation and distribution of the deceased estate. The Master will examine this account and, if it is in order, authorise the Executor to advertise the account to lie for inspection. The Executor’s account must lie open at the Office of the Master- and if the deceased was ordinarily resident in any other district, a duplicate of the account must lie open at the office of the Magistrate – for not less than 21 days, for inspec on by any person interested in that estate. The Executor must publish a no ce in the Government Gaze e and in one or more newspapers circulating in the district in which the deceased was ordinarily resident stating the period during which and the place at which the account will lie for inspection.

Once the inspection period has passed, the Master will notify the Executor that the account has lain for inspection free from objections. The Executor can then pay the creditors and distribute the estate among the heirs in accordance with the liquidation and distribution account. The Executor will lodge with the Master the receipts and acquaintances of the creditors and heirs. If the Executor is in possession of funds of R1 000 or more, he/she has to open an estate banking account.

The tax payable on a deceased’s estate is 20% of the nett deceased’s estate value. You may deduct allowable deduction from the assets of the deceased estate. You may deduct the Section 4A rebate which amounts to R 3.5 million. Kindly contact us for more assistance in respect of the above calculations.

The Executor will ascertain whether the estate is liable for value added tax (VAT) and/or income tax. If the deceased was registered as a vendor the Executor may have to register the deceased’s estate for VAT purposes. There will be VAT implications. The Executor may have to pay output tax to the South African Revenue Service on all assets in the deceased’s enterprise. It may be possible for the Executor to sell the enterprise as a going concern to another VAT vendor and have such transaction ‘zero rates’. The Income Tax Act provides that when a person dies, he/she is deemed to have disposed of all his/her assets to the deceased estate for an amount received or accrued equal to the market value of those assets, and the deceased estate is deemed to have acquired the assets for this market value. This is the general principle, but there are exceptions. For example, the assets accruing to the surviving spouse upon the death of the first dying spouse are not deemed to have been disposed of on the death of the deceased. In many estates income tax is payable. This could have an influence on the amount of the inheritance available to heirs.

An executor may ask a fee of up to 3.5 % exclusive of VAT of all the assets of a deceased’s estate. An executor may further ask a further 6 % of all income accumulated through the course of finalisation of the deceased’s estate.

Bonds of Security / Court Bonds
A bond of security is used when the Master of the High Court requires security where he appoints a person to be a custodian/ responsible person for someone else’s assets. The bond security protects the estate from any negligent act from the appointed person. It is a demanded bond, so if the security is called for by the Master of the High Court it must be paid immediately.

Liquidation bonds:
A Liquidator is appointed on insolvent estates, the liquidator will track down all the assets belonging to the estate, sell them and pay the creditors. The Master of the High Court requires a Liquidator or Trustee that is appointed in an insolvent estate to lodge a Bond of security with them. The Bond of security is provided by an Insurance Company to cover the estate against any misappropriation by the Liquidator or Trustee. It protects the creditors and other beneficiaries of the estate. The Master sets the value required for the security after various processes. The Bond of security is lodged at the Master of the High Court’s offices for the appointed liquidator. In case of a claim against the Bond of security the Master of the High Court will call on the Bond of Security. The money will be paid to the Master of the High Court.

Executor Bonds:
An Executor is appointed on a deceased estate, the purpose of the appointment is to distribute the assets of the deceased to the beneficiaries in terms of a will (if it exists)

A Deceased’s estate is insolvent when the assets (all property, motor vehicles, cash etc.) are not sufficient to pay all the debts.

17.1 In situations where a minor child inherits immovable property through a will of a deceased estate or in terms of the Intestate Successions Act, South African law makes provision and acknowledges that the minor child may own the inherited property and therefore take transfer with the assistance of their legal guardian. What this means is that although the minor child is the owner of the immovable property, the legal guardian is responsible for administering the property until the child reaches the age of majority and is considered fit to manage his/her own affairs. Should the minor child wish to sell or mortgage the property before turning 18, he/she would need the assistance of the legal guardian in order to do so. A popular alternative to this would be to create a testamentary (mortis causa) trust, in which case the property will vest in this trust until such time as the minor obtains majority or until the age, as mentioned in the trust, is attained. The title deed will be endorsed to this effect and formal transfer will take place once the stipulated age is reached.

However, to protect the minor’s future estate, restrictions are put in place regarding what actions the legal guardian is allowed to take in the administration of the minor’s property. For example, the guardian may not sell or dispose of the property without the consent of the Master of the High Court. In order to do so, the guardian will have to apply to the Master of the High Court who will assess the request and determine whether or not to approve it with a view to ensuring the best interests of the minor child are considered and protected.

This is however not the situation where the minor inherits money or if the property is sold, in such case, if the will does not specifically make provision for it or if it is an intestate estate the funds will be paid to the Guardians fund until the minor becomes 18 years old.

17.2 In cases where there was no will/testament:

Guardianship and Custodians

The Master has no jurisdiction to appoint a guardian or custodian over a minor. Any person having an interest in the care, well-being and development of a child as a guardian of such a child, may apply to the High Court for an order granting guardianship of the child. When considering such an application the court must take into account the best interests of the child, the relationship between the applicant and the child, and any other relevant person and the child; and any other fact that should, in the opinion of the court, be taken into account.

In the event of a person applying for guardianship of a child that already has a guardian; the applicant must submit reasons as to why the child’s existing guardian is not suitable to have guardianship in respect of the child.

As far as custody of a minor is concerned, the Child Care Act of 1983, provides that the Commissioner for Child Welfare for the district in which the minor is resident, and who is a designated Magistrate, may appoint a custodian over a minor, if after an enquiry, it is found that the minor is a child in need of care in terms of Section 14 of Child Care Act sets out the circumstances in terms of which minor is deemed to be in need of care, and includes the situation where a child has no parent or guardian or a child whose parent or guardian cannot be traced. The custodian, whom the Commissioner of Child Welfare appoints, is the person who is responsible for the day to day care of the minor. The custodian does however not have the rights to administer the assets of the minor and therefore a Guardians Fund is established by the Master of the High Court.

Guardian’s Fund

The Fund is created to hold and administer funds which are paid to the Master of the High Court on behalf of various persons such as minors, persons incapable of managing their own affairs, unborn heirs and untraced persons and creditors in insolvent estates.

The purpose of the Guardian’s Fund is to protect the funds of minors, persons lacking legal competence and capacity, known or unknown, absent as well as untraceable heirs. Monies which remain unclaimed in the Guardian’s Fund for a period of 30 years as from the date, upon which a person became entitled to claim it, is forfeited to the State.

Only six Master’s offices- Cape Town, Grahamstown, Pietermaritzburg, Pretoria, Kimberley and Bloemfontein – offer Guardian’s Fund services currently.

These offices provide Guardian’s Fund services to the remainder of the Masters’ offices throughout the country, on their behalf. The management and administration of this Fund has now been automated and the manual system designed for this purpose has been phased out.