An executor is a person who is appointed by the Master of the High Court (the “Master”) after he/she has considered the nomination of that person. The Master will issue a Letter of Executorship appointing a particular person to the designated estate. In terms of section 19 of the Administration of Estates Act Number 66 of 1965 (the “Estates Act”), if more than one person is nominated for recommendation to the Master, the Master shall, in making any appointment, give preference to:

a) the surviving spouse or his/her nominee; or
b) in the absence of a surviving spouse or his/her nominee ,an heir or his nominee;
c) if no heir is nominated or no heir has nominated any person, a creditor or his nominee; or
d)  the tutor or curator of any heir or creditor so nominated who is a minor or a person under curatorship, in the place of such heir or creditor:
Provided that the Master may-
a. join any of the said persons as executor with any other of them; or
b. if there is any good reason therefor, pass or any or all of the said persons.

Immediately after the letters of executorship have been granted to him / her, an executor shall take into his/her custody or under his/her control all the property, books and documents in the estate and not in the possession of any person who claims to be entitled to retain it under any contract, right of retention or attachment.  Furthermore, an executor who has reason to believe that such property, books or document is unlawfully withheld from him/her, he/she may apply to the magistrate for a search warrant.

The executor must also tend to the lodging of an inventory of the deceased’s property and open an estate late bank account. The executor is required to lodge a liquidation and distribution account within six months of the letters of executorship been granted to him/her. Should the executor fail to pay over any money to the Master or any other person or deposit the money into the estate late bank account, he/she shall pay into the estate an amount equal to double the amount which he/she has failed to pay over or to deposit or to double to the value of the property so used. Furthermore, if the executor makes a wrong distribution, he/she will be personally liable to the correct heir or claimant who lodged an appropriate claim and will be entitled to recover any money or property from any person who received the erroneous payment or property, the costs of which shall not be paid out of the estate.    

The executor shall be entitled to remuneration from the assets of the estate. In terms of Regulation 8 of the Estates Act, the executor shall be entitled to 3.5% of the gross value of the assets in the estate and 6% on the income accrued and collected after the death of the deceased.

In conclusion, the executor of an estate has responsibilities to the beneficiaries of the estate and to the Master; he/she has rights to obtain the property, books and documents of the deceased; and he/she can be held personally liable should a payment or property be wrongly distributed. However, an executor can only be removed by court order or by the Master. It is a position that should only be sought by those who are administratively capable, possesses the necessary skills to draft a liquidation and distribution account, and is able to effectively manage the concerns of the beneficiaries, creditors and the Master. We therefore suggest that if you are appointed as the executor, you mandate an attorney as your agent to attend to the duties of the executor.

Written by Kirith Haria, director, Kirith Haria Attorneys