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Can an individual and/or heir who is not resident in the Republic apply to be an executor in an a deceased estate?

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Can an individual and/or heir who is not resident in the Republic apply to be an executor in an a deceased estate?

6th March 2018

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We live in a modern age where people enjoy travelling and who often have loved ones located in various areas around the world.

Individuals, prior to their demise, are now more frequently nominating individuals and/or Heirs who are not Resident in the Republic to be the Executors in their Estates, in terms of a Last Will and Testament. 

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Administration of Deceased Estates is regulated by The Administration of Deceased’s Act 66 of 1965, as amended (hereinafter referred to as the “Act”) and provides strict provisions which need to be adhered to. The Master of the High Court will only grant Letters of Executorship if all formalities in terms of the Act have been complied with.

Whether an Individual and/or Heir, who is not resident in the Republic, can make application to the Master of the High Court to be appointed as an Executor, will be discussed in this article.

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Can an Individual and/or Heir who is not resident in the Republic, make application to the Master of the High Court to be appointed as an Executor?

In terms of the Section 22 of the Act, The Master may refuse to grant, endorse or sign and seal Letters of Executorship in certain cases.

This includes circumstance where Individuals and Heirs are not resident in the Republic, which makes it difficult for Estates to be efficiently administered.

However, in terms of Section 22 (2) of the Act, “The Master may:

(a) if any person to whom Letters of Executorship are to be granted or in whose favour an endorsement is to be made under section fifteen, or at whose instance Letters of Executorship are to be signed and sealed under section twenty-one, resides or is outside the Republic and has not chosen domicilium citandi et executandi in the Republic.”

The above provision therefore does not prohibit an Individual and/Heir from applying to the Master of the High Court, to be appointed as an Executor. However, the Individual and Heir will therefore be required to choose a domicilium citandi et executandi (physical address) in the Republic, to ensure service of all correspondence and documentation between the parties concerned.

Conclusion

The Administration of Deceased Estates Act 66 of 1965, as amended, does not prohibit an Individual and/or Heir who is not resident in the Republic to make application to the Master of the High Court to be appointed as an Executor in an Estate.

However, the Master of the High Court will most likely request a Bond of Security by such an Individual and/or Heir, which is costly and not easily attainable in the Republic.

Further, in these circumstances, it is recommended that the Individual and/or Heir appoint an Attorney to administer the Estate on their behalf in the Republic.

Contact SchoemanLaw Inc for assistance in the administration of Deceased Estates.

Written by Shannon Vengadajellum, SchoemanLaw Inc.

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