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Nominating an Executor in Your Will
Once the testator dies, the administration and management of the Estate is handled by an Executor. Estates valued at R250 000 or more are required by law to have an Executor. Therefore, it is very important that the appointed Executor has the ability to perform the required duty.
How Is an Executor Appointed?
An Executor is appointed by the Master in one of the following ways:
The testator may nominate an Executor in his Will who will then be formally appointed should the Master deem fit as executor upon the death of the testator through the issuing of a ‘Letters of Executorship’.
Where no Executor is nominated or the nominated Executor is nowhere to be found, refuses or is disqualified from taking up any role as an Executor then the Master may appoint the Executor applying his own discretion following recommendations by the beneficiaries. It is also important to note that the surviving spouse may be given first preference for Executorship however, if they have no experience the Master may require they appoint an agent to assist them.
Who may be appointed as an Executor?
It is not a requirement that the nominated or appointed person be a person with prior experience as an executor or in the administration of estates. A testator is free to nominate whomever they wish; be it family or friend. It is important to note however that the Master has discretion to ensure that the person appointed has the required skill and ability to wind up the Estate effectively.
We at KP Fiduciary Solutions advise that in such cases, the testator appoint an independent co-executor with some estate administration experience as the process does involve some complexities that may lead to the estate administration being long and overdrawn where the executor is not familiar with the process and the requirements.
A juristic person may also be appointed as an Executor; however, the juristic person must nominate a natural person who is a member of the juristic person who will be issued with the Letters of Executorship.
Requirements of being an Executor
As stated, one does not need previous administration experience. However, the Master requires that the nominated executor provide security for the proper performance of his duties unless the Will exempts the obligation to provide security or the person is the parent, spouse or child of the testator. The nominated executor must also not be a disqualified person. E.g. Unrehabilitated insolvent, minors, prodigals etc. It is required that the Executor reside within the Republic of South Africa and have the appropriate qualifications. Non-residents are excluded.
Key Takeaway: The nomination of an executor that has both legal standing and the capabilities of administering estate is important in ensuring a smooth and speedy winding down process.