Freezing and Availability of Funds at Death
In terms of the Administration of Estates Act, no one may take control of the assets or estate liabilities of a deceased, except in terms of an official letter of authorization from the Master of the High Court. This also includes the estate of the surviving spouse in a joint estate.
All powers of attorney in respect of a deceased lapse at his death. If anyone is in possession of an electronic card belonging to the deceased, no further transactions, including withdrawals at an ATM and other electronic transaction on the Internet, may be done on it.
Institutions such as banks are required to immediately freeze all accounts that form part of a deceased estate. Credit transactions such as payments may continue, but debit transactions such as withdrawals are not permitted.
A deceased’s business, such as a sole proprietorship or partnership, may also be suspended temporarily. If an executor cannot be appointed immediately, application may be made for an interim curator to be appointed.
Many surviving dependants, as well as institutions where funds and other assets of the deceased (or of the surviving spouse in a joint estate) are held, are not aware of the provisions and concessions contained in section 11 (1) (b) of the Administration of Estate Act, No. 66 of 1965. If they do know about these provisions, they often still insist on an official Letter of Executorship.
The aforesaid section stipulates, inter alia, that funds should be made available for the bona fide purpose of providing a proper funeral for the deceased and / or providing for the maintenance of his/her family and/or preserving or maintaining any part of the specific assets. For example, a bank with which the deceased did business may be willing to apply the said section, but then sufficient funds need to be available. A nominated executor or his agent is under no obligation to advance or make available his own or any other funds.
In practice, this problem is overcome in a number of ways. Making a spouse the beneficiary under a life policy is the most common solution. Unless there are circumstances that prevent prompt payment, funds are usually paid out fairly quickly after the submission of death certificates.
Bank accounts of a spouse in a joint estate, including assets of a spouse not included in the will, are generally unfrozen quickly, unless insolvency or other circumstances prevent this from being done.
Family and friends also help out, for example with the payment of funeral costs, which amount is refunded by the executor when circumstances permit.
Therefore, there are various ways to ensure that your dependants do not become dependent on others after your death. Obtain expert advice to prevent this.
The Winding up of a Deceased Estate
- Death is reported by completing a death notice and forwarding it to the Master of the High Court.
- The will is sent to the Master
- A rough inventory is taken of all the deceased’s assets and this is also sent to the Master.
- The executor named in the will must write to the Master requesting Letters of Executorship.
The executor’s duties involve:
- Drawing a detailed inventory of assets and liabilities.
- Opening of a bank account in the name of the Estate.
- Advertising for creditors to lodge their claims against the Estate.
- Placing the Balance Sheet in the local Magistrates Court for inspection.
- Payment of Estate Duty to the South African Revenue Service.
- Ensuring payment of all creditors of the Estate.
- The transfer of all property and assets to the various beneficiaries.
- Compiling a Liquidation and Distribution account, showing all the assets and liabilities of the deceased.
- Applying to the Master of the High Court for release from executorship.
Functions of the Administrator
Once the Estate had been liquidated, a complete distribution to ultimate beneficiaries does not necessarily have to follow. Depending on the terms of the will, complete distribution may be deferred. For instance, the will may stipulate that a person may only have access to their inheritance upon reaching a certain age.
It is the function and duty of the appointed administrator to administer and take control of that portion of the undistributed Estate, until such time as it becomes available for distribution to the heirs. He is responsible for investing money, collecting interest, rent and other possible income and dividing the profits made by the deceased Estate according to the decrees of the will.
The executor and the administrator of the Will may be one and the same person. However, if the Will fails to appoint an Administrator, the Master of the Supreme Court will do so.