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Executorships

The Executor

There are three kinds of executors:

Executors Testamentary:

These are persons nominated as executors by a testator in his will.

Executors Assumed:

These are persons assumed as co-executors by executors testamentary, but only if the will allows this.

Executors Dative:

These are appointed by the Master of the High Court where the deceased died without a will or where he died with a will but without nominating an executor or where the nominated executor is unable or unwilling to accept the appointment. An executor's function is to put the estate in a position where it is cleared of debts and so left free for enjoyment by the heirs.

The winding-up of an estate is not a simple matter. It requires specialised knowledge and a sound understanding of the law.

Generally speaking, it would not be wise to appoint a relative or friend who is a layman as your executor. To do so may well deprive your estate of the expertise it deserves. Also, to put a relative or friend in a position where he is required to make decisions affecting your family may be very onerous for him. It may also create a serious conflict of interests. He is unlikely to possess the necessary objectively to deal effectively with these decisions. When he realises the magnitude of his task, he may give little thanks for the honour bestowed on him.

The same reasons apply with regard to the appointment of a trustee to any trust you may create in your will.

Any person appointed as executor or trustee in a will usually must furnish security to the satisfaction of the Master for the proper performance of his functions. Security is usually given in the form of a guarantee by an insurance company, for the gross vaue of the estate. This obviously involves the estate in the expense of paying the premium for that guarantee. Also, it is often difficult, if not impossible, for a relative or a friend to obtain such a guarantee.

However, such security is not required if the person so appointed is a parent, child or surviving spouse of the testator or if the will directs the Master to dispense with such security.

How much will it cost?

We do not charge any fee for the drawing of a will, provided we are nominated as executors to the estate.

An executor must be appointed to wind up your estate. If no executor is appointed in your will, or if he is appointed but fails or refuses to accept the appointment, then the Master will appoint one.

An executor is entitled to a fee for winding up a deceased estate. This fee is laid down by law as 3.5% of the gross value of the estate. In addition, an executor is entitled to charge a commission of 6% of the income received by the estate after the death of the testator.

The gross value of an estate is the total value of all its assets before the deductions of any of its liabilities.