Choosing the Right Executor in South Africa: Why It's One of the Most Important Decisions You'll Make

Losing a loved one is an incredibly difficult time. Amidst the grief, the administrative burden of settling their estate can feel overwhelming. One of the most critical decisions you can make, whether planning your own estate or managing a deceased loved one's, is choosing the right executor. This individual, or professional, is legally responsible for administering the deceased's estate, ensuring compliance with the law, and making sure assets are distributed according to the will.

At Cornerstone Legal Consulting, we've seen firsthand how the right executor can make this process smooth and efficient, while the wrong choice can lead to costly delays and emotional stress for families. Let's explore what an executor does, why it matters, and why appointing a professional executor, such as an attorney experienced in deceased estates, can save time, reduce risk, and protect your loved ones from unnecessary distress.

What is an Executor?

An executor is the person or institution nominated in your will (or appointed by the Master of the High Court if there is no will) to wind up your estate after your death. This role involves numerous important responsibilities, including:

• Reporting the estate to the Master of the High Court to begin the administration process
• Collecting and securing all assets belonging to the deceased
• Paying creditors, including SARS and multiple institutions
• Submitting necessary tax returns and obtaining tax clearance certificates to ensure the estate meets all tax obligations
• Placing statutory advertisements to invite creditors to come forward and opening the estate late bank account
• Drafting and lodging the Liquidation and Distribution Account
• Transferring immovable property to heirs and closing the deceased's bank accounts
• Distributing inheritances to beneficiaries in accordance with the will or intestate laws

It's not a symbolic position - it's a serious legal and financial responsibility that requires competence, time, and precision.

The Common Misconception: "My Spouse or Child Can Handle It."

While it may seem logical or comforting to nominate a spouse, child, or close friend as executor, this is often not advisable, especially in larger or more complex estates. Consider the following risks:

• Grief and emotional distress can make it hard to focus on the complex legal and administrative tasks involved
• Lack of impartiality, which can cause family disagreements and delays
• They may have no legal knowledge or experience with estate administration procedures
• They could be held personally liable for mismanagement or mistakes
• Disputes may arise among heirs, especially if the executor appears biased or uninformed

**Example:** In one matter, a son was nominated as executor in his late father's will. Believing he could manage on his own, he delayed reporting the estate to the Master and failed to submit the required tax returns. As a result, SARS imposed penalties and several insurance policies lapsed due to administrative delays. The family eventually had to appoint a professional executor to step in as agent, which caused further delays and additional costs many of which could have been avoided from the outset.

The Master's Office is Increasingly Requiring Professional Executors

Recently, the Master's Office has been more frequently requiring professional executors, particularly for estates valued over R250,000. In such cases, the Master of the High Court often insists that a professional be appointed either in place of the nominated layperson executor or as an agent to assist them.

This requirement is especially common when the nominated executor is unfamiliar with the administration process, abroad, when there are multiple heirs, trusts, immovable property, or offshore assets involved, or when the Master believes the layperson executor may not have the necessary skills or competence to manage the estate properly.

Statutory Executor's Fees – What Do You Pay and What Do You Get?

In South Africa, executor's fees are regulated by law and are currently set at 3.5% of the gross value of the estate assets, plus 6% on any income received from the date of death until the estate is finalised. While some may hesitate at these costs, it is important to understand what they cover. These fees pay for the full legal and administrative handling of the estate, including ensuring compliance with SARS to avoid penalties, minimising errors and delays, and reducing the potential for family conflicts.

Ultimately, appointing a professional executor provides peace of mind during a difficult time. A qualified attorney can often save the estate more than their fee through effective tax planning, efficient asset realisation, and avoiding costly mistakes.

Why an Attorney with Deceased Estate Experience is Ideal

At Cornerstone Legal Consulting, we don't just act as executors we specialise in deceased estate administration. Here's why that matters:

• We know how to efficiently navigate the Master's Office, SARS, and Deeds Office processes
• We understand the tax implications of various assets and inheritance structures
• We are trained to identify red flags such as fraud, missing beneficiaries, or unreported income
• We act impartially and professionally, which is especially important when heirs do not see eye to eye
• We offer comprehensive fiduciary services, from will drafting to full estate planning

In short, we make sure your estate is administered efficiently, ethically, and in full compliance with the law.

How to Appoint a Professional Executor Today

When you draft your will with us, you can nominate a family member and state in your will that Cornerstone Legal Consulting assist as the nominated and requested agent or nominate one of our experienced attorneys as your professional executor.

If you already have a will, we can review it and advise whether an amendment or codicil is needed.

If you're currently an executor and feeling overwhelmed, we can step in as your agent and assist you with the entire process, helping you avoid common pitfalls and unnecessary delays.

Take Control of Your Legacy

Take control of your legacy by making informed decisions today. Don't leave your estate, or your loved ones' peace of mind, to chance. By appointing a trusted professional executor from the start, you can ensure that your wishes are respected, minimise unnecessary delays and costs, and help avoid family conflicts during an already difficult time. Let us guide you through the process with expertise and care, so you can have confidence that your estate will be administered smoothly and fairly.

Let us give you and your loved ones the peace of mind you deserve.

Frequently Asked Questions (FAQs)

**Q: What happens if I don't appoint an executor in my will?** A: If you don't nominate an executor, the Master of the High Court will appoint an administrator to wind up your estate. This can cause delays and may result in someone less familiar with your wishes handling your affairs.

**Q: Can a family member act as executor without professional help?** A: Yes, but the Master's Office often requires a professional executor or agent if the estate is complex or valued over R250,000. A family member without legal knowledge may face difficulties meeting legal requirements.

**Q: How long does the executor's process usually take?** A: The timeline varies depending on estate complexity but generally takes between 6 months to 2 years. A professional executor can help speed up the process.

**Q: Can the executor be held personally liable for mistakes?** A: Yes. Executors have a fiduciary duty to administer the estate diligently and in accordance with the law. If they act negligently, make errors, or fail to properly manage the estate—such as not paying creditors or submitting tax returns—they can be held personally liable for any resulting losses. This is why appointing a professional executor with experience is so important.

**Q: What if there's a dispute among heirs?** A: A professional executor acts impartially to manage disputes fairly and according to law, helping to prevent protracted family conflict.

**Q: What happens if I don't nominate a guardian for minor children in my will?** A: If you fail to nominate a guardian in your will, the courts may appoint someone to care for your minor children, which may not align with your wishes. It is essential to nominate a trusted guardian to ensure your children's care and upbringing are in responsible hands.