Wills, Estates and Trusts

The Master’s fee is a fee charged by the Master of the High Court to oversee and conclude a deceased estate. A Master’s fee of R600.00 is payable on the first R400,000.00 of the total asset value, plus R200.00 for every R100,000.00 thereafter. If a deceased estate has a total asset value of R2,000,000.00, the Master’s fee will be R3,800.00. The Master’s fee is capped at a maximum of R7,000.00.

It takes approximately one to two weeks to obtain a Letter of Executorship from the Master of the High Court after all the necessary documents were submitted. A section 29 advertisement must then be placed for a period of 30 days. Thereafter, all the deceased’s assets must be cashed-in or transferred and this might take a few weeks or months, depending on the amount of assets. Once all the assets have been collected, all creditors must be paid. The Executor or his/her agent must then draft and submit a Liquidation and Distribution Account to the Master of the High Court. The Master usually provides his/her consent to distribute the residue of the estate within one to two weeks. A section 35 advertisement must then be placed for a period of 30 days, whereafter the Master will approve the Final Liquidation and Distribution Account and the estate will be finalised.

If a deceased person did not leave a Will, his/her estate will be distributed in terms of the Intestate Succession Act 81 of 1987. This Act determines that if a deceased had a spouse but no children, the spouse will inherit the entire estate. If the deceased had children but no spouse, such children will inherit the entire estate. If the deceased had a spouse and children, the spouse will inherit a child’s share or R250,000.00, whichever is more. If the deceased had no spouse or children, his/her parent(s) will inherit the entire estate.

The beneficiaries of a deceased, as nominated in his/her Will, can enter into a Redistribution Agreement in terms of which they agree to divide the deceased’s assets in another way as determined by the Will. All the nominated beneficiaries that will be impacted by such distribution must consent thereto in writing.

The registration of a Trust with the Master of the High Court costs R250.00, however there are several forms to be completed and a Deed of Trust must be drafted. The costs involved in drafting a Deed of Trust often depends on the size and complexity thereof and it is advisable to obtain a quotation from a professional for the proper drafting of a Deed of Trust.

Assets vesting in a Trust are generally excluded from any marital estates, however, there are certain exceptions. When it can be proven that both spouses contributed towards the assets held in the Trust, or where a spouse uses a Trust to hide assets or to defraud their spouse, the assets may be declared to form part of the marital estate.

Anybody aged 16 years or older can draft a Will, except a person who is a beneficiary named in such Will. It is always advisable to consult an attorney or other professional with expertise in estate planning in order to ensure that your assets are protected and your estate is distributed effectively.

A Will must be signed to be valid, however, it is not a requirement for the Will to be dated in order for it to be valid and enforceable. In terms of the Wills Act 7 of 1953, a Will must be in writing, signed by the testator on every page and signed by two witnesses, at least 14 years of age, on every page to be valid.