Many people nominate either their spouse or children to be the executor/s of their deceased estate.
When the nominated person presents him or herself to the Master of the High Court (“the Master”) to get their Letter of Executorship, they could be in for a shock. They may well be told at the reception desk that only qualified lawyers, accountants or firms that specialise in winding up estates will be given a Letter of Executorship. If the executor does not fit into one of these categories, he or she will be classified as a “lay” person, which means that there are bound to be additional administrative problems in finalising estate matters.
If an executor is indeed told this, it is not accurate in that “lay” persons can be appointed as executors; in which event however, the Master of the High Court will want to see suitably qualified people or organisations appointed as their agents.
This may have implications for you when drafting your will.
Why has this happened?
Winding up an estate is a specialised business and the Master in the past found that executors without the requisite skills floundered, which resulted in delays in winding up the estate. The Master therefore had to frequently and routinely intervene to appoint an adequately skilled executor.
Appointing a qualified agent
If the executor does not have the requisite skills, the Master will strongly encourage the executor to appoint an agent to assist. This agent could be from a firm specialising in deceased estates, an attorney or an accountant.
The agent will effectively work for the executor, who can negotiate the agent’s contractual terms and fees. Importantly, if the agent does not fulfil the terms agreed on, the executor may replace the agent.
The agent appointed or replaced by the executor must notify the Master that he or she has the skills to assist with the winding up of the estate.
What to do when drafting your will
When drawing up your will, keep this in mind. Either appoint a professional executor upfront, or, if your nominated executor will need help when winding up your estate, why not suggest (in a separate note to your choice of executor) someone suitably qualified you trust to assist with the winding up? That way you and the executor can negotiate the terms with the agent and know that your estate will be in good hands.
It is better to be proactive when preparing your will to avoid delays and possible extra costs in winding up the estate.