Delays in winding up your deceased estate can prolong the heartache and trauma suffered by your loved ones and, while many of the delays emanate from the Master’s Office responsible for winding up the estate, very often it is the deceased’s lack of adequate estate planning that is responsible.
Potential reasons for delay
Let’s have a look at some of the potential reasons for delay:
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 if 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 in order to find it, 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 the existence of your original Will.
Dying without a Will: Dying intestate invariably causes a delay in estate administration for a number of reasons. Primary, if you die intestate, the Master’s Office will need to appoint an executor to wind up your estate – and this can take time to finalise. Intestacy can also result in estranged family members benefiting from your estate and can leave your spouse inadequately provided for in the event of your passing, especially in instances where your financially independent adult children inherit a portion of your estate as a result 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, especially where disputes arise relating to unclear wording which can be differently interpreted. Any legal challenge to the validity or interpretation of your Will can take years to resolve which, in turn, delays the winding-up process.
Incomplete Wills: A Will that does not deal with every aspect of your estate can also cause unnecessary delay, especially where the testator has failed to mention certain assets or where it emerges that the testator had a child from a previous relationship. If the Will does not include what is referred to as a ‘residue clause’ – a clause which effectively deals with the residue of his estate after all debts have been settled and bequests paid – a testator can die partially intestate, and the residue of his estate will have to be distributed following the laws of intestacy.
Nominating a layperson as executor: If you have nominated an inexperienced family member or friend as executor of your estate, the Master’s Office is unlikely to confirm the appointment unless there is an outsourced fiduciary expert to fulfil this function. Estate administration is a highly specialised area and should be undertaken by someone who has experience in this field.
Unavailability of important documentation: In order to report a deceased estate, your loved ones will need to provide the Master’s Office with several important documents, including the original death certificate, original Will and codicils, your ID document and passport, marriage contract, divorce certificate, details of your next-of-kin and an inventory of your assets. The Master may without appointing the executor until all the necessary documentation has been received. Bear in mind that the winding-up process cannot begin until the executor has been appointed, so collating your estate planning file should be of the utmost importance.
Inadequate cash in estate: Any liquidity shortfall in your estate can delay the process of winding up your estate. Remember, your executor can only fulfil the wishes set out in your Will and cannot use her discretion outside of her mandate. Let’s take a situation where you leave a lump sum amount of R500 000 to each of your three children. However, after your executor has paid all debts in the estate, your available cash reserves are R800 000. Clearly, there is insufficient liquidity to honour your bequest, and your executor may need to seek permission from the Master’s Office to realise certain assets in order to pay out the bequest. Your children may have differing views in terms of which assets should be realised and any such dispute will further delay the winding-up process. To avoid such a situation, your financial advisor should prepare regular estate liquidity calculations to ensure that the terms of your Will can be honoured.
The existence of a foreign Will: If you have a foreign Will in place to deal with assets held in a foreign jurisdiction, this can also result in the winding up of your estate. Applying for foreign probate, especially in civil law jurisdictions or where language barriers exist, can be both time-consuming and expensive, so be sure to have your foreign Will drafted by an expert in that particular jurisdiction.
How to make it easier for your loved ones
To avoid continued heartache and potential financial difficulty for your loved ones, there are some concrete steps you can take when undertaking estate planning. These include:
- Use a fiduciary expert to prepare a well-drafted, valid Will for you. Ideally, ensure that three originals of your Will are signed and held in three separate locations for safe keeping. Make sure that your spouse and/or loved ones know of its existence and its whereabouts so that it is easily accessible in the event of your passing.
- Together with your fiduciary expert, check your Will on an annual basis and make sure that it is an accurate expression of your intentions and that all assets that fall within your estate are dealt with.
- Ensure that your estate planner prepared liquidity calculations every year to ensure that there is sufficient liquidity in your estate to cover all debts, honour your bequests, and provide adequately for your loved ones.
- Ensure that your Will deals with the residue of your estate to avoid dying partially intestate.
- Make sure that you destroy all previous Wills, and that your current Will includes a clause that revokes all previous Wills made by yourself.
- Collate an estate planning file that includes all documents required for the winding up of your estate.
- Give careful thought to other matters that your loved ones will need to attend to following your death. For instance, if you are the legal owner of firearms, your heirs will need access to your firearm licences. The transfer of ownership will need to be handled by the police, who will need access to your valid licences. The codes to your firearm safe will also need to be provided to your loved ones.
- You may wish to provide your loved ones with instructions on how you would like your various online accounts and profiles to be closed down, and this will include providing specific details in respect of login codes, passwords and usernames.
- If you have any specific requests in terms of burial, cremation and/or funeral arrangements, your loved ones would probably appreciate any details.
- If you live alone with your pets, consider making advance provisions for what will happen to them should you pass on.
Have a fabulous day.
Sue
