Duties after the letters of executorship

•Take control of the deceased estate

•Advertise for creditors

•Open the estate late account in the name of the estate (min R1000,00)

•Complete the income tax returns for the estate

•Evaluate to determine if the estate is insolvent or not

•Decide on the method of liquidation to be used in distributing the estate and

•Submit the liquidation and distribution account to the master

Method of liquidation

•The beneficiaries;

•Wishes of beneficiaries;

•Nature of assets;

•Debts against the estate and the value thereof;

•Provisions of the will if there is;

The executor may decide on the following methods of distribution:-

A.To transfer actual assets to beneficiaries unless its against the provisions of the will

B.Do a partial sale of assets especially if there is a shortage in cash or assets of the estate cannot be divided

C.To do a total sale of assets, this could be if the debts of the estate are too high, or there is a testamentary provision to that effect; or

D.The beneficiaries request a total sale

E.And etc

What should be contained in the heading of the account?

•Full name & surname of the deceased

•Account number

•Id no of deceased

•Date of death

•Marital status

•Details of surviving spouse

We then record the following

•Monies received

•Assets available ( we separate movable from immovable assets)

•Indicate if there are any claims pending in favour of the estate;

•Add value of assets combined with money

•Add value of liabilities

•At the end indicates the balance or residue of assets and money that are available for distribution amongst beneficiaries.

What is a recapitulation statement?

It’s a statements that forms part of the Liquidation account and it reflects the following:

•In the assets column it reflects the amount of cash in the position of the executor plus the value of the assets and

•In liabilities column it reflects the debts and legacies payable in cash;

If there is a shortage of cash, the executor has to show how the shortage will be overcome.

Distribution account

The residue or balance reflected in the liquidation account is transferred to the distribution account. Now the executor indicates how the assets will be distributed amongst beneficiaries.

There are other accounts we will read about them in our spare time

Other tasks of the executor

üAdvertise in the government Gazette and the local newspaper which will lie for inspection for 21days

üRespond to objections if any

üSubmit proof of accounts to the master

INTERPRETATION AND RECTIFICATION OF WILLS

 

Interpretation

The distribution of a persons estate is done after his death. If he dies testate, the provisions of his will must be interpreted in order to determine his intention. If there are any disputes emanating from the provisions of the will the court shall interpret the provisions of the will.

The main purpose of interpretation is to determine the intention of the testator. Therefore the intention of the testator is the most important thing in interpretation, since the wishes of the testator must be fulfilled

 

What are the basic principles of interpretation of the will?

•The purpose of the interpretation is to ascertain the intention of the testator

•The intention of the testator must be ascertained by looking first on the will itself. If the intention is clear from the will.

•In the process of interpretation a court cannot make a new will for the testator.

From the above basic principle it transpires that ascertaining testator’s intention is the central point of interpretation.

What are the elements of intention?

•The desire of the testator; and

•The sense in which the testator used the word in his will.

The following are the sources for the interpretation of the will:-

•The will itself

•Evidence about facts, people, things and circumstances affected by the will;

•Evidence outside the will

There are rules applicable or that serve as a guideline when the court interprets a will. Please know the rules.

Rectification of wills

What is a rectification of a will? It’s a correction by the court of an error in the will if there is a mistake. Not drafting a new will.

Rectification is done after the death of the testator. One must not confuse rectification with amendment of a will.

Amendment is done by the testator during his lifetime while rectification is done by the court after the death of the testator.

What are the ways in which a court may rectify the will?

a)Correcting the ordinary errors in the will, eg typing errors and incorrect descriptions

b)Deleting words added mistakenly, and

c)Adding words omitted mistakenly