Knowledge helps – Wills and Administration of Deceased Estates


It goes without saying that the idea of passing away is traumatic, whether it is in thinking about your own death or dealing with the death of a loved one. In our experience, it makes a difficult time considerably easier if the deceased had his or her affairs in order and if the people left behind have an understanding of what will happen when the time comes.

In essence, the things to consider are whether you are going to prepare a Will (lawyers like to say a “Last Will and Testament”), and the basics of the winding-up or administration of a Deceased Estate.

The Will

A Will allows you to decide how your assets and affairs are dealt with on your death. If you do not have a valid Will your Estate will be dealt with in terms of the rules of intestate succession, which essentially distributes your assets to your closest family. Given that you didn’t appoint an executor to deal with the winding up of your Estate (which you would normally have done if you did a Will), your closest family will have to go through the process of deciding on and nominating an executor.

In your Will you can appoint an executor, leave specific assets to specific people, and decide how the rest of your Estate will be divided. You may create a testamentary trust, appoint a guardian for minor dependants, specify what should happen if you were to be on life support, and leave instructions regarding funeral arrangements.

Writing a Will focuses your mind on your affairs, an activity often left until it is too late. Loved ones are left without instructions creating distress and sometimes dispute – something which happens more often than you think. The deceased’s family may discover that the deceased is insolvent, with severe consequences for the surviving family.

A few minutes with a professional will be time well spent to understand your circumstances and ensure that you have a will that complies with the formalities of our law. It will help if you put together a list of all your assets and liabilities and how you want to deal with them before you go to see someone.

Winding up or Administration of an Estate

The process of collecting and distributing a deceased’s assets is referred to as winding up, or administering, an Estate. In conjunction with the Master of the High Court, an Executor is appointed to perform this function in terms of the Will of the deceased or in terms of the rules of intestate succession, if the deceased has no Will.

A basic Flowchart representing the essential steps involved in winding up an estate is attached. It runs from reporting the Estate to the Master, through collecting assets and recording liabilities, to advertising for Creditors, drafting and advertising the Liquidation and Distribution Account, determining the amount of Estate Duty payable (if any), and attending on the distribution of assets, or, in some cases, instituting insolvency proceedings.

There can be delays in the Master’s office, but there also are many deceased estates in which the affairs are disorganised. Unpicking problems and resolving disputes between family members is time consuming and can be avoided by ensuring that your affairs are in order, saving family members unnecessary problems and distress.

Disputes in the distribution of the Estate can be dealt with by the Master of the High Court, and if necessary one can approach the High Court to make a judgment.

During the administration of the Estate family members can face cash flow difficulties if they were dependent on the deceased. Similarly if the deceased was a business owner their death may place the business at risk or the partners in the business may not be able to pay out the Estate for the deceased’s interest in the business.

This is another reason why it is useful to plan your affairs. The Executor can be instructed to pay maintenance to dependants out of the proceeds of the Estate. You can ensure that your Estate is liquid enough to cover any costs related to winding up your Estate such as valuations and property transfers by having insurance policies in place which will pay out to your Estate. This is also applicable between business partners and will allow surviving partners enough liquidity to purchase the deceased person’s interest.

Establishing legal entities such as Family Trusts, to hold assets and cushion them from the affect of one’s passing away, can also form part of your estate planning. This kind of estate planning is best done with advice from an objective and independent professional.

If you have already taken the first step in planning your estate, it might be time to review your position, update your Will and take into account any changes that have taken place.

We invite you to take the time to ask a few basic questions, to spend a few minutes learning about the winding up process and understanding how it affects your circumstances. It will put your mind at ease and allow you to get on with your daily activities with more confidence.

Click to download Flowchart here.

From the team.
MA Cooper Attorneys
With Energy and with Experience, giving you Expression