Delays in winding up your estate can compound the emotional burden on your loved ones. While the Master’s Office is often blamed, inadequate estate planning is frequently the underlying cause. Ensuring your affairs are in order can significantly reduce stress, confusion, and delays during an already difficult time.
(i) Common causes of estate administration delays
Unable to locate your original Will: When notifying the Master’s Office of your death, your loved ones will be required to provide your original Will and codicils. If your loved ones do not know where your original Will is kept – or whether you even have a Will – this could result in unnecessary delays in your estate administration. In order to locate your Will, your loved ones may need to approach your bank, financial planner, attorney or insurer, and this process can take months to complete. Remember, your executor cannot be appointed in the absence of an original, valid Will, so take steps to ensure that your loved ones are aware of its existence.
Dying without a Will: Dying intestate invariably causes delays in estate administration for several reasons. Primarily, if you die intestate, the Master’s Office will need to appoint an executor to wind up your estate – a process that can take time. Intestacy can also result in estranged family members benefiting from your estate and can leave your spouse inadequately provided for, especially where financially independent adult children inherit a portion of your estate in terms of the laws of intestate succession.
Poorly worded or complex Wills: Overly complex Wills, especially in the case of blended families and previous spouses, can result in delays in the administration process where disputes arise due to unclear wording or clauses that can be interpreted in different ways. Any legal challenge to the validity or interpretation of your Will can take years to resolve, significantly delaying the winding-up process.
Incomplete Wills: A Will that does not deal with every aspect of your estate can cause unnecessary delay, particularly where the testator has failed to mention specific assets or has unacknowledged heirs, such as a child from a previous relationship. If the Will does not include a ‘residue clause’ – which effectively deals with the remainder of the estate after debts are settled and bequests paid – the testator may die partially intestate, and the remaining assets will need to be distributed in accordance with the laws of intestacy.
Nominating a layperson as executor: If you nominate an inexperienced family member or friend as executor of your estate, the Master’s Office is unlikely to confirm the appointment unless a professional fiduciary expert is appointed to fulfil this role. Estate administration is highly specialised and should be undertaken by someone with expertise and experience in the field.
Unavailability of important documentation: To report a deceased estate, your loved ones must provide the Master’s Office with several important documents, including the original death certificate, original Will and codicils, ID document and passport, marriage contract, divorce certificate, details of your next-of-kin, and an inventory of your assets. The Master may delay appointing the executor until all necessary documentation has been received. The winding-up process cannot begin until this appointment is made, so collating your estate planning file is essential.
Inadequate cash in the estate: Any liquidity shortfall in your estate can delay the administration process. Remember, your executor can only act within the terms of your Will and cannot use discretion outside that mandate. For example, if your Will bequeaths R500 000 to each of your three children but only R800 000 remains after debts are settled, there will be insufficient liquidity to honour the bequests. The executor may need to request permission from the Master’s Office to realise certain assets to make payment, which may result in disputes among heirs and further delays. Regular estate liquidity calculations by your advisor are essential to ensure your bequests can be fulfilled.
The existence of a foreign Will: If you have a foreign Will in place to deal with assets held in another jurisdiction, this can delay the winding-up process. Applying for foreign probate—especially in civil law jurisdictions or where language barriers exist—can be time-consuming and costly. To avoid complications, have your foreign Will drafted by an expert familiar with the laws of that specific jurisdiction.
(ii) Practical steps to simplify the process for your loved ones
To avoid prolonged heartache and potential financial hardship for your loved ones, consider taking the following steps as part of your estate planning:
- Use a fiduciary expert to draft a valid Will. Ideally, have three original copies signed and stored in separate, safe locations. Ensure your spouse and/or loved ones are aware of its existence and whereabouts.
- Review your Will annually with your fiduciary expert to ensure it reflects your current wishes and that all estate assets are appropriately addressed.
- Have your estate planner prepare annual liquidity calculations to confirm that there is enough cash to settle debts, honour bequests, and provide for your loved ones.
- Include a residue clause in your Will to avoid partial intestacy.
- Destroy all previous Wills and ensure your current Will contains a revocation clause that nullifies earlier versions.
- Collate an estate planning file with all the documents required to wind up your estate.
- Anticipate practical matters that your heirs will need to attend to. For instance, if you legally own firearms, your heirs will need access to valid licences. Transfer of ownership must be handled by the police, so your firearm safe codes must be accessible.
- Provide instructions for closing your online accounts and profiles, including login credentials, passwords, and usernames.
- Consider leaving instructions regarding burial, cremation, or funeral preferences. Your loved ones may appreciate this guidance during a difficult time.
- If you live alone with pets, make provisions for their care should you pass away unexpectedly.
Taking the time to plan your estate thoroughly is one of the most considerate gifts you can leave your loved ones. By addressing potential delays and ensuring your affairs are in order, you not only honour your legacy but also provide clarity, relief, and direction during an emotionally challenging time.
Have a wonderful day.
Sue
