The Importance of Appointing a Professional Executor

The importance of appointing a professional executor in your last will and testament should never be underestimated. Understandably, we all want to appoint a person who will not unnecessarily burden the estate with high executor’s fees. Unfortunately, it has been shown repeatedly in practice that the value of a professional executor is priceless.\

What is a professional executor?

It is a person (normally an attorney or auditor) or trust company who has the legal knowledge and technical skills to administer all forms (simple and complex) of estates. They consider the different Acts impacting the effective administration of the estate, specifically the Administration of Estates Act 66 of 1965, Intestate Succession Act, 81 of 1987, Estate Duty Act, 45 of 1955 and Income Tax Act, 58 of 1962, to name a few. Furthermore, the person or trust company will be held to a higher fiduciary standard than that of a person who does not have the necessary knowledge or skills.

It is strongly recommended that the person you wish to nominate as your executor has the following characteristics, namely, independence, integrity, honesty (has a reputation for trustworthiness) and technical knowledge of the administration process. The ideal candidate will need to know how to deal with completing claims, objections, inter jurisdiction estates and how to deal with a claim under the Maintenance of Surviving Spouses Act, 27 of 1990 etc.

What are the responsibilities and duties of an executor?

The executor must administer and distribute the deceased’s estate in terms of their last will and testament or in terms of the Intestate Succession Act, 81 of 1987, where there is no valid will.

• They will need to list all personal effects, contact all financial institutions and collect all the assets and liabilities of the deceased’s estate.
• They are required to do a valuation of the assets and liabilities and account for them in a Liquidation and Distribution Account submitted to the Master of the High Court.
• The Liquidation and Distribution Account is advertised so that all relevant stakeholders may approach the executor and prove their claim against the estate.
• The executor will manage the transfer of assets, settle all claims against the estate, and settle the relevant taxes, transfer duties, and master fees.
• Once all claims against the estate have been accounted for, the executor will wind up and distribute the estate per the last will and testament or Intestate Succession Act, 81 of 1987.

How is an executor’s remuneration determined?

A duly appointed executor may charge a fee for services rendered up to a maximum of 3.5% (excluding VAT) on the gross asset value of an estate. Given the magnitude of certain estates, this may amount to a significant financial obligation to the estate. We recommend that the testator negotiate a mutually acceptable fee with the professional executor when drafting his will. This will give him peace of mind that he has covered all aspects and will give his family peace of mind that the right person is administering the estate.

It is crucial to appoint a professional executor who understands their role and does not take their responsibility and the role they must play in the effective administration of the estate lightly.