Duties of the parties involved in a will:
Testator and/or Testatrix:
Must be over the age of 16 and reflect his/her wishes in the will.
Master of the High Court:
- The Master acts in a supervisory capacity.
- The Master is inter alia also involved in:
- Registration and de-registration of trusts.
- The demand and control of security to be offered by the trustee.
- The appointment of trustees.
- The discharge of trustees from office should they not display diligence in the administration of the trust.
Appointed by the Master of the High Court.
Liquidates and distributes the estate after paying all claims, costs and taxes. The testator may nominate a person or institution (e.g. a trust company, bank, lawyer, etc.) as an executor and/or trustee in his will.
- The Master of the High Court must approve of such a person and must approve his appointment.
- The executor may charge a maximum fee of 4.025% including VAT [3.5% plus 15% VAT].
- If the surviving spouse is nominated as executor and does not have enough knowledge to administer the estate personally, he/she may appoint a trust company, bank, lawyer or accountant, as proxy to administer the estate on his/her behalf.
- The choice of a person to fulfil this role should not be taken lightly.
- The first choice is often to nominate the spouse as executor in the will. Is this the best choice?
- The Master of the High Court will appoint the spouse as executor, but the spouse may not have the ability to administer the estate and an agent will have to be appointed to do so on behalf of the spouse.
- The death of a loved one is an emotional event and not everyone is able to make important financial decisions (e.g. who should act as agent) when he/she is grieving.
- Without the necessary knowledge the spouse may not know where to obtain the best service or advice. The spouse may be exposed to someone who is acting in his own interest, in which case the “cheque book” of the estate could fall into the wrong hands, without the heirs having any security.
- The duties of the executor sometimes entail the administration of a trust over a much longer term.
- The spouse might die at the same time or shortly after the first deceased and this would result in a delay in the administration process and the winding up of the estate. This argument applies to any natural person nominated as executor, e.g. a lawyer, auditor or other relative
- Given the above, a person’s financial adviser / planner has an important role to play in advising his client with regard to making this choice.
A witness to a will must be at least 14 years of age and must be competent to testify in a court of law. The testator must sign the will in the presence of the two witnesses or acknowledge in their presence that the signature is his/hers. It is not necessary for the witnesses to know that the document that is signed is a will. They merely acknowledge that the signature is that of the testator and testatrix and that at the time of the signing he was sound of mind and not acting under duress.
The function of a guardian is to assist a minor in matters in which he/she is legally incompetent to act. The guardian must be exempt from furnishing security or s/he must provide the Master of the High Court with security.
The guardian is not necessarily the person in whose care the minor is, but this is usually the case. Normally the trustees of the testamentary trust will administer the assets, while the guardian will administer the property and take care of the person of the minor child/children.