Estates FAQ

 

Which Master of the High Court office do I report a deceased estate to?

Where the deceased was resident in the Republic, the estate must be reported to the Master in whose area of jurisdiction the deceased was resident at the time of his/her death. At present there are Master’s Offices in Pretoria, Cape Town, Pietermaritzburg, Grahamstown, Bisho, Umtata, Bloemfontein, Kimberley, Mmabatho/Mafikeng, Johannesburg, Polokwane, Durban, Port Elizabeth and Thohoyandou.

 

Where the deceased was not resident in the Republic at the time of his/her death, the estate may be reported to any Master, provided it is reported to only one Master.  An affidavit to the effect that the letters of executorship have not already been granted by any other Master in the Republic must accompany the reporting documents.

 

The Master of the High Court website provides all the contact details of the Masters Offices around South Africa.

 

 

How do I know where someone is domiciled and why is it important?

Your legal rights and duties are often determined by the law of your place of domicile. Generally, your domicile is your permanent home.  At birth, a child automatically acquires the domicile of the parent (or parents) with whom he or she is staying.  A child cannot change his or her own domicile.  On reaching the age of 18, a person can acquire a new domicile simply by settling in a new country with the intention of living there permanently.

 

In order for a place to be considered the persons domicile, there are two requirements that must be met: the person must actually settle at the particular place, and they must have the intention of residing permanently at that place.  These two requirements must at some stage exist simultaneously.  For Example:  If a man domiciled in South Africa took a job in Botswana, there would be no change of domicile if he intended to return to South Africa, no matter how long he stayed in Botswana. On the other hand, he would acquire new domicile if he intended to settle in Botswana permanently.

 

The law of domicile governs many questions relating to family issues, for example the distribution of moveable property on death.  For example, if Peter was domiciled in Australia, died intestate (without making a will) and left moveable property (such as shares and money) in South Africa, Australian and not South African law would decide who would inherit.

 

 

Can I get all the necessary forms without going to the Masters offices?

Yes, the Master of the High Court website provides all the forms you may need.  Click on the link provided to enter the Masters website on the page which provides printable versions of all the forms needed for winding up an estate.

 

 

What format/info is required when advertising an estate in the local newspaper & Government Gazette?

Contact your local newspaper and they will send you the necessary forms to fill in.  Some newspapers also offer the service of forwarding the forms to the Government Gazette so that the same notice is published in both publications at the same time.  See the notice to creditors form supplied on the Masters Offices website.

 

 

What does the law prescribe regarding executors fees?

Executors fees, by law cannot exceed 3.5 percent of the gross assets (before deducting debts or tax) of your estate, plus six percent of any income, such as dividends, rent or interest, which the executor collects on behalf of your estate before it is finalised.

 

 

Who pays tax on inheritance?

If SARS is satisfied that the income has been derived for the benefit of an heir or legatee, that person will be responsible for any tax liability; if the receiver is not satisfied that this is so, the income is deemed to be the income of the estate.  The executor, as representative taxpayer, is liable for payment of any tax on the income, this tax will be paid by the estate.

 

The names, addresses, and where possible, the tax reference numbers of those benefiting from the estate will be required by the SARS.

 

 

Do I have to pay estate duty?

Estate duty is only payable in respect of an estate of which the net value is more than 3.5 million.  However, if the estate goes to a spouse then there will be no estate duty payable.

 

 

What if an heir cannot be located?

All money that the executor is unable to distribute in accordance with the accounts must be deposited in the Guardians Fund on behalf of those entitled to such money.

 

 

What if a valid claim is made against the estate after it has been distributed?

A creditor does not lose the right to claim even if the claim is not lodged within the specified period, but may have to pay additional costs incurred by the estate in redrafting the accounts.  If a legitimate claim is made after the estate has been distributed, the executor may have to pay the debt out of his own pocket.  This would largely depend on whether the executor is at fault in any way, and if the estate was distributed in a way not provided for by law.  If the executor is not at fault, the creditor can claim the amount from the heirs.  If the amount that the heirs received does not meet the whole claim, the balance owing can be claimed from the legatees, provided this is done within three years of the date of death.

 

 

Can my spouse continue to use our bank account when I die?

Assets are frozen when estate administration begins, and this can have serious implications for dependents.  A spouse married in community of property will have no access to funds in the combined estate until the executor is sure the estate is solvent, so it may take some time before the spouse can access any cash.
To avoid this, one can take out a life insurance policy in favour of your spouse or other dependents.  Such policies pay directly to the beneficiaries named in the policies, often within days of the insurance company receiving the necessary information.

 

If your death is foreseeable, due to ill health, transfer a sum of money to your spouse or dependents.

 

 

When am I advised to get a lawyer regarding winding up an estate?

It is advisable in most instances to use a lawyer or accountant.  Seek advice if you have any doubt on the proposed charges.  Always ask for a fee based consultation and if you have doubts about the person you are using, get a second opinion.