Below you will find our answers to the most frequently asked estate questions we receive.
The estate must be reported to the Master in whose area of jurisdiction the deceased was resident at the time of death. At present there are Master’s Offices in Bloemfontein, Bisho, Cape Town, Durban, Grahamstown, Johannesburg, Kimberley, Mmabatho/Mafikeng, Umtata, Nelspruit, Pietermaritzburg, Polokwane, Port Elizabeth, Pretoria and Thohoyandou.
Where the deceased was not resident in the Republic at the time of 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.
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 person domiciled in South Africa took a job in Botswana, there would be no change of domicile if s/he intended to return to South Africa, no matter how long s/he stayed in Botswana. On the other hand, s/he would acquire new domicile if s/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 a person was domiciled in Australia, died intestate (without having 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.
Yes, the Master of the High Court website provides printable versions of all the forms you may need.
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 (J193) supplied on the Masters Offices website.
Executors fees, by law cannot exceed 3.5% of the gross assets (before deducting debts or tax) of your estate, plus 6% of any income, such as dividends, rent or interest, which the executor collects on behalf of your estate before it is finalised.
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 SARS.
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.
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.
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.
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.
Repatriation of human remains to foreign countries is handled by almost all funeral directors. If the deceased travels by plane it can be a costly exercise involving compulsory embalming of the body and various medical permissions in both countries. If you are bringing someone who has died abroad back to South Africa, find more information supplied by the Department of International Relations and Cooperation.
Always obtain comparative quotes from funeral directors to compare funeral prices. Repatriation usually involves funeral directors on both sides, so there is nothing wrong with obtaining comparative quotes for these funeral services in both countries. If the deceased was traveling at the time of their death, they may have travel insurance. If they were traveling abroad it is advisable to check with their bank/travel agent before proceeding.
If you need a friend who will understand, call the Compassionate Friends on (011) 440-6322 Monday to Friday 9.00 am to 1.00 pm. An after-hour number will be made available if you need someone to talk to after hours. For more emotional support and access to a 24-hour telephonic service visit Lifeline’s website.
If you are living outside of South Africa, once you have filled in our will template, get your will checked by your local authorities after completing it. That is the only way to ensure that it is compliant and valid in your country.
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Ashes to ashes, dust to dust, all come from earth, and to earth all return.
Ashes to ashes,
dust to dust,
all come from earth,
and to earth all return.