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Deceased estates, probate and administration

Deceased estates, probate and administration

Being an executor can be a perplexing and tough experience. We fully understand that it’s a very tough and emotional time for everyone involved. This article is about how make the entire process as stress-free and smooth as possible. Let’s take a look at deceased estates, probate and administration.

A guide to deal with a deceased’s estate

Here are some helpful solutions to some of the most frequently asked questions by executors:

1. What is an executor

An executor is legal personal representative of the deceased who is responsible for executing, or following through on, an assigned task or duty. Therefore the executor involves important duties and obligations.

2. Duties of an executor

The most important duties are:

  1. Firstly, to organise for the committal, burial or cremation of the body;
  2. Secondly, to take administration of all property and furthermore to collect all debts due to the estate;
  3. Thirdly, to utilise assets in the estate to pay all the deceased’s debts;
  4. Next, to make sure the assets are managed effectively;
  5. Lastly, to dispense the estate’s assets to the people the will says should have them.

3. Remuneration for being an executor

To start with, your inheritance as a beneficiary as well as an executor will be deemed adequate compensation. However, in the event that you are not a beneficiary, you’re permitted to apply to through legal channels for a commission for the work undertaken by you as executor.

4. Refusal to be executor

By signing a renunciation, you can repudiate executorship. A legal professional acting on behalf of the estate will file the renunciation with the application for probate.

5. Accessing the will

In most instances the original copy of the will can be located amongst the deceased’s personal effects. However if you’re not in possession of the original will you can obtain it from the holder by producing identification and proof of death. Examples of evidence of death, include; original death certificate or, the funeral notice. In the event that the whereabouts of the will are you unknown, engage a lawyer to undertake searches and enquiries on your behalf.

6. Original death certificate

A death certificate is an official document that serves as confirmation that the death has transpired. Legal administration of the estate requires an original death certificate. Your funeral director will facilitate and arrange for the certificate to be issued by the Registry of Births, Deaths and Marriages.

7. Obligations to dispose of the body

It is the Executor’s responsibility to arrange for the burial or cremation of the body. Fulfillment of the deceased’s wishes and instructions should taken into account when disposing of the body. The will usually contains such instructions.

There are also instances where the deceased may have left some direction regarding organ or tissue donation. It is also the obligation of the executor to ensure this is honoured.

8. The deceased’s assets

a. Solely owned assets

Following the demise of the deceased, assets held in the deceased person’s sole name will be frozen. Prior to the granting of the probate, financial institutions will only allow enough money to be released to the executor for payment of the funeral expenses.

b. Jointly owned assets

Assets jointly owned by the deceased and a living person will not be frozen. In addition the joint living owner can transfer real estate where it was held by them with the deceased in a joint tenancy.

9. Probate

Probate means to prove, and involves proving that the will in the executor’s possession is the last will of the deceased. Therefore a probate is a legal document verifying and authenticating the genuineness of a will. In the same light it grants the executor the power to administer the estate.

The need to obtain a probate is fundamentally dependent upon the nature of the deceased person’s assets.

For example, where the deceased person owned real estate or other valuable assets, it will generally be necessary to obtain probate.

10. Succeeding probate

As soon as probate is accorded, the executor can assemble the deceased’s assets. Furthermore they must organise to pay all debts or taxes of the deceased. Funeral expenses must be paid first, then the executor’s expenses and finally the other debts of the deceased. Subsequently, the assets are either dispensed according to the terms in the will or they are sold with the proceeds being divided amoung the beneficiaries.

11. Tax

Additional responsibilities for the executor involve  lodging taxation returns on behalf of the deceased. We strongly advise seeking the services of an accountant or any such professional to help you with the deceased’s taxation affairs.

12. Asset disbursement procedure

After the singling out of all assets, following the sale of assets, and all debts have been paid, the remainder of the estate can be distributed to the beneficiaries. Preceding this comes the publication of a notice in the newspaper requiring anybody with a claim against the estate to provide particulars of the claim within one month.

Beneficiaries receive an estate statement of account and a distribution report when they receive their share of the estate. This shows;

  • Firstly, what the assets were;
  • Secondly, how much money resulted from any sale of assets;
  • Thirdly, payment of expenses and debts from the proceeds.

13. Missing will

In cases where the deceased is intestate, meaning died without a will; the Government has various procedures for the distribution of a deceased’s assets. In most instances, the deceased’s next-of-kin will inherit the estate.

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Teddy Chibanguza

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