Estate Assist – Cloete Inc

Author: estateadmin

  • Can an Heir Live in the Deceased’s House Without Paying Rent?

    A person dies leaving behind a house that is meant to benefit several heirs.

    One family member is already living in the property—or moves in shortly after the death. They change the locks, exclude the other heirs, refuse to pay rent and begin treating the house as though it belongs to them alone.

    The other heirs are then told:

    “I am also an heir, so I have every right to live here.”

    But is that correct?

    Can one heir occupy the deceased’s house to the exclusion of everyone else? Can the estate claim occupational rent or damages? And can the amount owing be deducted from that heir’s inheritance?

    The answer depends on the circumstances, but an heir does not ordinarily acquire the right to take exclusive control of estate property merely because they expect to inherit from the estate.

    An Heir Does Not Automatically Own the House When the Deceased Dies

    A common misunderstanding is that ownership of the deceased’s property passes immediately to the heirs on the date of death.

    That is not how the administration process works.

    The executor must first take control of the estate assets, establish the estate’s debts and liabilities, prepare the liquidation and distribution account and distribute the remaining assets in accordance with the will or the law of intestate succession.

    Section 26 of the Administration of Estates Act places the custody and control of estate property in the hands of the duly appointed executor. South African courts have similarly confirmed that the executor must obtain control of estate assets, realise assets where necessary, settle the estate’s obligations and only then distribute what remains to the heirs.

    An heir therefore generally has a right to receive what is awarded to them through the estate administration process. They do not simply become the registered owner of a particular estate asset immediately after the death.

    This means that an heir cannot ordinarily say:

    “I inherit one-third of the estate, so I am entitled to occupy the whole house without paying anything.”

    Who Decides Who May Occupy the Property?

    While the property remains in the deceased estate, the executor is responsible for controlling and protecting it.

    The executor should establish:

    • Who is living in the property;
    • On what basis they are occupying it;
    • Whether the deceased permitted them to live there;
    • Whether the will grants them a right of occupation or usufruct;
    • Whether they are required to pay rent;
    • Who is responsible for municipal charges, levies and maintenance;
    • Whether the property should be rented, sold or transferred; and
    • Whether the continued occupation is prejudicing the estate.

    An executor is not merely an agent who must follow the instructions of whichever heir is most forceful. The executor is legally responsible for administering the estate and is the person authorised to deal with its assets.

    Does an Heir Have a Right to Live in the House?

    Possibly—but not merely because they are an heir.

    The right to occupy may arise from:

    • A lease concluded with the deceased;
    • A lease or written arrangement concluded with the executor;
    • A right of occupation contained in the will;
    • A usufruct or similar limited right;
    • Ownership of a separate share of the property;
    • The rights of a surviving spouse;
    • A maintenance claim;
    • A genuine agreement between the executor and all affected parties; or
    • Another legally recognised basis.

    The facts therefore matter.

    For example, a will may provide that the deceased’s spouse may live in the house for the rest of their life. In that situation, the spouse’s occupation is not simply unauthorised occupation by an heir.

    Similarly, where the deceased allowed a child to occupy the property free of charge for many years, it may be necessary to determine whether that permission continued after death and whether the executor properly terminated it.

    However, a family member who has no lease, no right under the will and no permission from the executor cannot necessarily remain indefinitely simply because they may inherit a share of the estate.

    What Does It Mean to “Hijack” an Estate Property?

    An heir may effectively hijack the property where they:

    • Move into it without the executor’s authority;
    • Change the locks and refuse the executor access;
    • Prevent the other heirs from entering;
    • Refuse to provide keys;
    • Prevent the property from being valued;
    • Block prospective purchasers or tenants from viewing it;
    • Refuse to leave after receiving notice;
    • Use estate furniture and assets as their own;
    • Collect rental from tenants without accounting to the estate;
    • Allow the property to deteriorate;
    • Use municipal services while the estate pays the accounts; or
    • Claim exclusive rights that they do not legally have.

    This conduct can cause substantial financial loss.

    The estate may lose rental income, incur additional municipal charges, suffer deterioration to the property or be unable to sell or transfer the house.

    Can the Estate Charge the Heir Rent?

    Potentially, yes.

    An executor may require an occupying heir to enter into a proper rental or occupation agreement. That agreement should ideally record:

    • The monthly rental;
    • The commencement date;
    • Who must pay water, electricity, rates and levies;
    • Responsibility for maintenance;
    • Access rights;
    • The period of occupation; and
    • What happens if the property must be sold or transferred.

    The executor should not permit one heir to enjoy the exclusive use of an estate asset indefinitely while the estate and the other heirs carry the cost.

    However, the executor should also avoid imposing arbitrary rental retrospectively without first establishing the legal and factual basis for the claim.

    Can the Estate Claim Occupational Rent or Damages?

    A claim may arise where the heir remains in occupation without lawful authority or refuses to vacate after their right of occupation has ended.

    Depending on the facts, the estate may potentially claim:

    • Reasonable occupational rental;
    • Damages for unlawful holding over;
    • Loss of rental income;
    • Municipal charges and utilities paid on the occupier’s behalf;
    • Damage caused to the property;
    • Costs of restoring or securing the property;
    • Rental secretly collected from third parties; or
    • Other losses directly caused by the heir’s conduct.

    South African courts recognise that an owner may claim compensation where an occupier unlawfully remains in possession after the right to occupy has ended. The amount is often linked to reasonable market rental, although the legal basis and proof of the claim remain important.

    A claim is therefore possible, but it is not automatic merely because one heir lived in the property.

    From What Date Can Rent or Damages Be Claimed?

    This is one of the most important questions.

    The claim may not necessarily run from the date of death.

    The relevant date could be:

    • The date on which the executor was appointed;
    • The date on which permission to occupy was terminated;
    • The date on which the executor demanded rental;
    • The date on which the heir was instructed to leave;
    • The expiry of an agreed occupation period;
    • The date on which the occupier began excluding the executor;
    • The date on which a sale or rental opportunity was lost; or
    • Another date determined by the particular facts.

    The executor’s position is generally stronger where the occupier has received a clear written demand stating that they must:

    1. Pay an agreed or reasonable rental;
    2. Provide access to the executor;
    3. Pay specified property expenses; or
    4. Vacate the property by a particular date.

    A court has, for example, considered an executrix’s attempt to evict an occupier who continued living in estate property without paying rent and who allegedly obstructed the administration of the estate.

    Must the Estate Prove Its Loss?

    Yes.

    The executor cannot simply choose a convenient figure and call it damages.

    The estate may need evidence showing:

    • The period of unauthorised occupation;
    • The market rental value of the property;
    • Whether the property could realistically have been rented;
    • Whether prospective tenants or purchasers were turned away;
    • The municipal charges and expenses paid by the estate;
    • Damage caused during occupation;
    • Rental received by the occupier;
    • The date permission was withdrawn; and
    • The connection between the heir’s conduct and the estate’s loss.

    An independent rental valuation from an estate agent or property practitioner may be useful.

    For a damages claim, the executor may also need to prove that the loss was actually caused by the heir’s conduct rather than merely assuming that the property would otherwise have produced income.

    What if the Heir Paid Rates, Repairs or Maintenance?

    Those payments must be considered.

    An occupying heir may argue that they:

    • Paid municipal accounts;
    • Paid levies;
    • Maintained the garden;
    • Repaired the roof;
    • Secured the property;
    • Paid insurance;
    • Prevented vandalism; or
    • Improved the house.

    This does not automatically cancel the estate’s claim. However, legitimate and properly proved expenses may have to be credited against any amount owing.

    The executor should distinguish between:

    • Necessary expenses that preserved the estate asset;
    • Ordinary living expenses that benefited the occupier;
    • Luxury improvements undertaken without authority;
    • Repairs that were never approved;
    • Amounts supported by invoices and proof of payment; and
    • Unsupported estimates.

    An heir cannot necessarily renovate the property without permission and then unilaterally deduct whatever amount they choose from the rent or damages claimed by the estate.

    Can the Other Heirs Claim Their Own Rent Directly?

    Usually, the safer approach is for the executor to pursue the claim on behalf of the deceased estate while the property still forms part of the estate.

    The property is under the executor’s control, and the financial loss is ordinarily suffered by the estate itself.

    Any amount recovered should then be brought into the estate and dealt with through the liquidation and distribution account. The benefit would ultimately flow to the heirs according to their respective entitlements.

    The other heirs should therefore normally demand that the executor investigate and act rather than each heir separately attempting to invoice the occupier for their personal percentage of the rent.

    Can the Amount Be Deducted From the Occupying Heir’s Inheritance?

    Potentially, yes—but only if the estate has a proper claim.

    Where an heir owes money to the deceased estate, the executor must account for that debt as an asset of the estate. The Administration of Estates Act requires debts due to the estate to be reflected and collected or properly explained in the estate accounts.

    In practice, an amount lawfully owing by the heir may sometimes be set off or accounted for against the inheritance due to that heir.

    For example:

    • The heir is entitled to inherit R500,000;
    • The estate has an agreed or established claim of R180,000 against that heir;
    • The heir may ultimately receive the net balance of R320,000.

    However, the executor should not simply declare that a disputed amount is owed and reduce the inheritance without a proper basis.

    What if the Heir Disputes the Claim?

    If the heir admits the debt and agrees to the deduction in writing, the matter may be relatively straightforward.

    The position becomes more difficult where the heir disputes:

    • That rent was payable;
    • The date from which it became payable;
    • The rental amount;
    • Whether occupation was authorised;
    • Whether the executor consented;
    • Whether the estate suffered any loss;
    • Whether expenses should be credited;
    • Whether the occupier had a right under the will; or
    • Whether the proposed deduction is lawful.

    The executor cannot safely act as both claimant and final judge in a genuinely disputed claim.

    Depending on the circumstances, the executor may need to:

    • Negotiate a written settlement;
    • Refer the matter for mediation;
    • Obtain legal advice;
    • Institute proceedings to establish the estate’s claim;
    • Seek eviction or other court relief; or
    • Reflect the dispute transparently in the liquidation and distribution account.

    The executor must ensure that any deduction is lawful, properly quantified and supported by evidence.

    A Practical Example

    A mother dies leaving her estate equally to her three children.

    One child remains in the deceased’s house after the death. The executor initially allows the child to remain temporarily while the estate is reported.

    Six months later, the executor informs the child in writing that:

    • The house must be sold;
    • Prospective buyers require access;
    • The child must either sign a temporary occupation agreement and pay R9,000 per month or vacate within 30 days.

    The child refuses, changes the locks and prevents viewings for another 18 months.

    An independent rental assessment places the reasonable rental at R9,000 per month.

    The starting calculation may be:

    R9,000 × 18 months = R162,000

    The estate may also have paid:

    • R24,000 in municipal charges;
    • R12,000 in levies; and
    • R15,000 to repair damage caused during the occupation.

    However, the occupier produces proof that they paid R20,000 for an essential plumbing repair authorised by the executor.

    The executor would have to consider all of these amounts carefully. The estate’s claim may not simply equal the gross rental calculation.

    Once the claim is agreed or legally established, it may potentially be accounted for against the occupying heir’s share of the inheritance.

    What if the Heir Collects Rent From Tenants?

    This can be even more serious.

    An heir may take control of the property and rent rooms, flats or outbuildings to third parties while keeping the rental income.

    That rental belongs to the estate unless the heir has a lawful agreement entitling them to it.

    The executor should demand:

    • Copies of all leases;
    • The names of tenants;
    • Rental statements;
    • Bank statements showing payments received;
    • Details of deposits held;
    • An account of expenses deducted; and
    • Immediate payment of the net rental to the estate bank account.

    An heir who collects estate income for personal use may be required to repay it and account fully to the executor.

    What if the Heir Damages the Property?

    The estate may have a separate claim for physical damage.

    Examples include:

    • Removing fittings;
    • Selling estate furniture;
    • Failing to attend to major leaks;
    • Allowing the property to become vandalised;
    • Making unauthorised structural alterations;
    • Damaging doors or locks;
    • Failing to maintain a swimming pool;
    • Permitting unlawful subletting; or
    • Removing appliances that belong to the estate.

    The executor should document the condition of the property with photographs, inspection reports, quotations and valuations.

    The claim should distinguish ordinary wear and tear from actual neglect or intentional damage.

    Can the Executor Evict the Heir?

    Potentially, yes.

    If the heir has no lawful right to remain, the executor may seek eviction so that the property can be controlled, sold, transferred or rented for the benefit of the estate.

    The executor should not resort to self-help by changing the locks while the occupier is away, removing their belongings or cutting off essential services.

    A lawful eviction process may be required, including compliance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act.

    Recent cases confirm that executors can approach the court for eviction from property belonging to a deceased estate where the occupier has no established right to remain.

    What if the Executor Is Also the Occupying Heir?

    This creates a serious conflict of interest.

    An executor who lives in the estate property must still act in the interests of the estate and all its beneficiaries.

    Warning signs include an executor who:

    • Lives rent-free without proper authority;
    • Uses estate funds to pay their household expenses;
    • Prevents the property from being sold;
    • Refuses to disclose rental arrangements;
    • Excludes the other heirs;
    • Delays the estate for personal benefit;
    • Fails to account for occupation in the liquidation and distribution account; or
    • Uses their position to secure the property for themselves.

    An executor is not free to treat estate property as their own. Serious misconduct, conflicts of interest or failure to administer the estate properly may justify a complaint to the Master or, in appropriate circumstances, an application for removal.

    What Should the Other Heirs Do?

    The heirs should place their concerns before the executor in writing.

    They can request:

    • A copy of the will;
    • The Letters of Executorship;
    • Confirmation of the occupier’s legal basis for remaining;
    • A copy of any lease or occupation agreement;
    • Details of rental being paid;
    • Municipal and levy statements;
    • Confirmation of who holds the keys;
    • Information about any rental collected;
    • A valuation of reasonable market rental;
    • Confirmation of whether the property will be sold or transferred; and
    • An explanation of how any claim against the occupier will be dealt with in the estate account.

    The complaint should be specific.

    Instead of merely saying:

    “My brother has hijacked the house,”

    the heir should explain:

    “My brother has occupied the estate property exclusively since March 2024, changed the locks, refused the executor access, paid no rental and prevented two prospective purchasers from viewing the property.”

    That gives the executor, the Master or a court something concrete to investigate.

    The Executor Must Act Before the Loss Escalates

    An executor should not allow the situation to continue indefinitely.

    The longer an unauthorised occupier remains:

    • The larger the potential rental claim becomes;
    • The more difficult the evidence may be to reconstruct;
    • The greater the municipal and maintenance costs become;
    • The more likely the property is to deteriorate;
    • The harder it may be to sell or transfer the property; and
    • The greater the conflict between the heirs becomes.

    The executor should establish the occupation terms early and put them in writing.

    Where the occupier refuses to cooperate, the executor should obtain advice and take proportionate action rather than allowing one heir to control an asset belonging to the estate.

    The Important Distinction

    There are two incorrect assumptions:

    Incorrect assumption 1:
    An heir may live in the whole property for free because they will inherit part of the estate.

    Incorrect assumption 2:
    The executor may automatically charge any amount they choose and deduct it from the heir’s inheritance.

    The correct position lies between these extremes.

    An heir’s expected inheritance does not ordinarily give them the right to occupy the estate’s property exclusively and without accountability.

    At the same time, any claim for occupational rent, damages or expenses must be legally justified, properly calculated and fairly dealt with.

    Need Help With an Heir Occupying Estate Property?

    Disputes over the family home can delay an estate for years and significantly reduce what ultimately remains for the beneficiaries.

    Before deciding what action should be taken, it is necessary to establish:

    • Who owns the property;
    • What the will provides;
    • Who the lawful heirs are;
    • Whether the occupier has a legal right to remain;
    • Whether the executor authorised the occupation;
    • Whether the estate has suffered a measurable loss;
    • Whether rental or damages can be proved;
    • Whether expenses must be credited; and
    • Whether the claim can lawfully be accounted for against the occupier’s inheritance.

    Estate Assist can review the relevant documents, assess the executor’s handling of the property and assist in determining the appropriate steps to protect the estate.

    Contact Estate Assist if an heir has taken control of estate property, refuses to pay rent, excludes the other heirs or prevents the estate from being finalised.

    This article provides general information about South African deceased-estate law. The legal position depends on the will, the rights of the occupier, the conduct of the executor and the evidence available. It should not be treated as legal advice for a specific estate.

  • Can an Executor Sell the Family Home Without the Heirs’ Consent?

    A family member dies and leaves behind a house.

    Before long, the executor announces that the property is going to be sold. The heirs are shocked. Some want to keep the property in the family, while others believe it is being sold too cheaply.

    This raises an important question:

    Can an executor sell a deceased estate property without the heirs’ consent?

    The answer is not a simple yes or no.

    An executor is responsible for administering the deceased estate and may sometimes have good reason to sell a property. However, the executor does not ordinarily have an unrestricted right to sell estate property in any manner or on any terms they choose.

    The Executor Controls the Administration of the Estate

    Once appointed by the Master of the High Court, the executor assumes responsibility for administering the deceased estate.

    The executor’s duties include:

    • Identifying and securing estate assets;
    • Establishing the estate’s debts and liabilities;
    • Collecting money owed to the deceased;
    • Paying valid estate expenses and creditors;
    • Preparing the liquidation and distribution account; and
    • Distributing the remaining assets to the heirs.

    The executor is therefore not merely acting as an agent for the heirs. The executor has independent statutory duties and remains responsible for ensuring that the estate is administered properly.

    This means that the heirs cannot simply take possession of the house, sell it themselves or decide amongst themselves how the estate will be administered.

    However, that does not mean the executor may disregard the heirs altogether.

    What Does Section 47 of the Administration of Estates Act Say?

    Section 47 of the Administration of Estates Act 66 of 1965 regulates the sale of property by an executor.

    Unless a sale would be contrary to the deceased’s will, an executor must generally sell estate property in the manner and subject to the conditions approved in writing by the heirs who have an interest in that property.

    In practical terms, this means that the affected heirs would ordinarily be asked to approve important aspects of the sale, including:

    • Whether the property will be sold privately or by public auction;
    • The proposed purchase price;
    • The identity of the purchaser;
    • The conditions contained in the offer to purchase; and
    • Any commission, occupational rent or other important terms.

    The heirs’ approval should not be treated as a meaningless formality. It allows the heirs to protect their interests and question a sale that appears unnecessary, irregular or financially prejudicial.

    What Happens if the Heirs Do Not Agree?

    One heir may want to keep the property, another may want an immediate sale, and a third may believe that the proposed purchase price is too low.

    An estate cannot remain unresolved indefinitely merely because the heirs cannot agree.

    Where the heirs are unable to agree on the manner or conditions of the sale, the executor may approach the Master of the High Court for approval to proceed with the sale.

    The Master can then consider matters such as:

    • The provisions of the will;
    • The estate’s debts and available cash;
    • The valuation of the property;
    • The proposed selling price;
    • The reasons for the sale;
    • The interests of the heirs;
    • The objections raised by any heir; and
    • Whether the proposed sale is in the best interests of the estate.

    The heirs therefore do not necessarily have an absolute veto over a sale. However, an executor should not simply ignore an heir’s refusal and proceed as though consent were unnecessary.

    When Might the Property Have to Be Sold?

    An executor may have to sell the property when the estate does not have enough cash to meet its obligations.

    For example, the estate may have to pay:

    • Home loan debt;
    • Municipal charges;
    • Income tax or estate duty;
    • Funeral or administration expenses;
    • Executor’s fees;
    • Maintenance claims;
    • Other valid creditors; and
    • Costs associated with transferring or maintaining the property.

    A deceased estate may appear wealthy because it owns a valuable home, but still be cash-poor.

    If the estate owns a house worth several million rand but has little money in its bank account, the property may have to be sold to settle the estate’s liabilities.

    An heir cannot ordinarily insist on receiving the property while expecting the estate’s creditors and administration expenses to remain unpaid.

    What if an Heir Wants to Keep the Property?

    An heir may be able to take transfer of the property instead of allowing it to be sold to an outsider.

    Whether that is possible will depend on:

    • The wording of the will;
    • Who inherits the property or the residue of the estate;
    • The value of the property;
    • The amount owing to other heirs;
    • The estate’s debts and expenses;
    • Whether the heir can obtain a home loan or provide the required cash; and
    • Whether the proposed arrangement can lawfully be reflected in the liquidation and distribution account.

    Suppose a house is worth R2 million and two children inherit the estate equally. One child may wish to keep the house, but that child may have to compensate the other child for their share.

    The heir taking the property may also have to contribute enough money to cover estate debts, transfer costs and other administration expenses.

    Wanting to keep the family home is therefore not always enough. The proposed arrangement must also be financially workable.

    What if the Will Specifically Leaves the House to an Heir?

    The wording of the will is extremely important.

    A will may state:

    “I leave my house situated at [address] to my daughter.”

    That is different from a will that merely leaves the entire residue of the estate equally to several heirs.

    Where a particular property is specifically bequeathed to an heir, the executor should ordinarily give effect to that instruction unless there is a lawful and compelling reason why the property must be sold.

    A sale may still become necessary if, for example, the estate has insufficient cash to settle its debts and there is no other practical solution.

    However, an executor should not casually disregard a specific bequest merely because selling the property would be more convenient.

    What if the Surviving Spouse Lives in the Property?

    The surviving spouse’s position requires careful consideration.

    The spouse may:

    • Own a share of the property;
    • Have inherited the property under the will;
    • Have a claim arising from a marriage in community of property;
    • Have a maintenance claim against the estate;
    • Have a right of occupation created by the will; or
    • Simply be occupying a property that belongs entirely to the estate.

    Occupation alone does not necessarily give the surviving spouse ownership of the property. However, the executor must establish the spouse’s legal rights before attempting to sell or transfer it.

    A surviving spouse should not assume that the property can never be sold, while an executor should not assume that the spouse can simply be removed without proper legal consideration.

    Can the Executor Sell the Property Below Market Value?

    An executor has a duty to protect the estate and act in the interests of those entitled to its assets.

    A sale below market value may be justifiable in limited circumstances—for example, where a property has serious defects, there is little market interest or an urgent sale is genuinely required.

    However, heirs are entitled to question a sale where:

    • The price appears substantially below market value;
    • No proper valuation was obtained;
    • The property was never properly marketed;
    • A much higher offer was rejected without explanation;
    • The purchaser is connected to the executor;
    • The estate agent or purchaser appears to have received preferential treatment; or
    • The executor refuses to disclose the offer to purchase.

    The fact that an executor has been appointed does not permit the executor to dispose of estate assets recklessly or for the benefit of a favoured purchaser.

    Can the Executor or a Family Member Buy the Property?

    A transaction involving the executor, the executor’s spouse, parent, child, partner, employer, employee or agent requires particular scrutiny.

    Section 49 of the Administration of Estates Act restricts the purchase of estate property by an executor or certain connected persons unless the necessary consent and confirmation are obtained.

    An executor should never quietly arrange to acquire an estate asset through a relative, business associate or connected entity.

    Any conflict of interest should be disclosed fully, and the prescribed approval process must be followed.

    Can the Executor Sign an Offer to Purchase Before Being Appointed?

    A person nominated as executor in a will does not automatically have authority to administer the estate immediately after the death.

    The executor’s authority ordinarily arises once the Master issues the Letters of Executorship.

    Signing agreements or attempting to dispose of estate property before receiving the necessary authority can create serious complications.

    Heirs should therefore check whether the person claiming to act as executor has actually been appointed by the Master.

    Is the Master’s Certificate Required for Transfer?

    When an executor transfers immovable property following a sale, the conveyancer must satisfy the Deeds Office that the necessary estate requirements have been met.

    Section 42(2) of the Administration of Estates Act requires the Master to certify that there is no objection to the transfer.

    The sale agreement alone is therefore not the final step. The executor and conveyancer must still comply with the estate administration and transfer requirements.

    Warning Signs That Heirs Should Not Ignore

    Heirs should ask questions where:

    • They are suddenly told that the property has already been sold;
    • They were never shown the offer to purchase;
    • Their signatures or approval were never requested;
    • The property appears to have been sold below market value;
    • The purchaser is related to or associated with the executor;
    • The executor refuses to provide a valuation;
    • The executor will not explain why the sale is necessary;
    • The will appears to require the property to be transferred to a specific heir;
    • The estate appears to have enough cash to pay its debts without selling the property; or
    • The executor pressures the heirs to sign documents they do not understand.

    Not every disagreement means that the executor is acting improperly. Nevertheless, heirs should obtain proper advice before signing away their rights.

    What Can an Heir Do if They Object to the Sale?

    The first step is usually to request relevant information from the executor in writing.

    This may include:

    • A copy of the will;
    • The Letters of Executorship;
    • A valuation of the property;
    • The proposed offer to purchase;
    • Details of how the property was marketed;
    • An explanation of why the sale is necessary;
    • A summary of the estate’s debts and cash position; and
    • Confirmation of whether the Master’s approval has been requested.

    The heir should clearly state the grounds for the objection rather than merely saying, “I do not consent.”

    For example:

    “I object to the proposed sale because the purchase price is substantially below the independent valuation and the executor has not explained why the higher offer was rejected.”

    Depending on the circumstances, it may be necessary to submit an objection to the Master, challenge the executor’s conduct or obtain urgent legal assistance before transfer takes place.

    The Important Distinction

    There are two incorrect extremes:

    Incorrect belief 1: The executor can sell the property whenever and however they choose because they control the estate.

    Incorrect belief 2: A single heir can prevent any sale indefinitely simply by refusing to sign.

    The correct position lies between these extremes.

    The executor is responsible for administering the estate, but the wishes and rights of the interested heirs must ordinarily be considered when determining the manner and conditions of the sale.

    Where agreement cannot be reached, the matter may have to be placed before the Master for a decision.

    Need Assistance With a Deceased Estate Property?

    Disputes involving a family home can quickly become emotional and expensive.

    Before agreeing to or opposing a sale, it is important to establish:

    • What the will says;
    • Who legally owns or inherits the property;
    • Whether the estate has enough cash to pay its debts;
    • Whether the proposed selling price is reasonable;
    • Whether the correct approval process was followed; and
    • Whether the executor is acting in the interests of the estate.

    Estate Assist can review the available documents, explain the administration process and help determine whether there are proper grounds to challenge or proceed with the sale.

    Contact Estate Assist for assistance with the administration of a deceased estate or concerns regarding the conduct of an executor.

    This article provides general information based on South African deceased-estate law. Every estate depends on its own will, assets, liabilities and circumstances. The article should not be treated as legal advice for a specific matter.

  • Should You Put Your House and Other Assets Into a Family Trust?

    A family trust in South Africa is frequently promoted as an essential part of estate planning.

    People are often told that they should create a trust, transfer their home and other assets into it, and thereby protect those assets from creditors, reduce estate duty and make it easier for their family when they die.

    A properly structured and administered trust can certainly be useful. However, a trust is not automatically the right solution for every person or every family.

    Transferring assets into a trust can have immediate tax and cost consequences. It may also result in the loss of tax benefits that the person would have enjoyed if the asset had remained registered in their personal name.

    This is particularly important when someone is advised to transfer their primary residence into a family trust or company.

    Before creating a trust or transferring any valuable asset into it, the full costs, tax consequences and long-term purpose of the structure should be properly considered.

    A trust does not automatically save tax

    One of the most common misconceptions is that placing assets into a trust automatically reduces tax.

    A trust is treated as a separate taxpayer and is taxed differently from an individual. An ordinary trust is generally taxed at a flat rate, while individuals are taxed according to a sliding scale.

    The capital gains tax treatment of an ordinary trust can also be less favourable than that of an individual.

    Individuals and qualifying special trusts currently receive an annual capital gains exclusion. An ordinary trust does not receive the same annual exclusion and has a higher capital gains inclusion rate.

    This means that where an asset is eventually sold and the capital gain is retained in the trust, the resulting tax can be considerably higher than it may have been had the asset remained registered in the individual’s name.

    Trusts may be able to distribute certain income or capital gains to beneficiaries in appropriate circumstances, but these transactions must be properly authorised, recorded and implemented. They should not be regarded as an automatic way of avoiding tax.

    You cannot simply move a property into a trust

    A house cannot ordinarily be transferred into a family trust merely by changing the name on the title deed.

    The property must be formally transferred through the Deeds Office, usually by way of a sale or donation to the trust.

    Depending on how the transaction is structured, the transfer may result in:

    • Capital gains tax for the existing owner;
    • Transfer duty payable in respect of the acquisition;
    • Conveyancing fees and Deeds Office charges;
    • Bond cancellation and new bond registration costs;
    • Valuation and professional fees;
    • Donations tax if the property is donated or transferred for less than its market value; and
    • A loan account owing by the trust if the purchase price is not paid immediately.

    Transfer duty is generally calculated according to the value of the property and applies to acquisitions by both natural persons and trusts. The current transfer-duty rates apply to transactions concluded from 1 April 2025 and remained unchanged from 1 April 2026.

    The first R1,210,000 of the property value is currently subject to transfer duty at 0%, after which progressively higher rates apply.

    The fact that the property is being transferred to the owner’s own family trust does not ordinarily mean that transfer duty and the other transfer costs fall away.

    The primary residence exclusion may be lost

    One of the most important issues to consider is the capital gains tax treatment of a primary residence.

    An individual who disposes of a qualifying primary residence may currently disregard up to R3 million of the resulting capital gain or loss.

    This can provide a substantial tax benefit where a person has lived in a home for many years and the property has increased significantly in value.

    An ordinary family trust or company does not generally qualify for the primary residence exclusion. The exclusion ordinarily applies where the owner is an individual or a qualifying special trust.

    A person may therefore transfer a family home into a trust, pay the tax and costs associated with the transfer, and later discover that the trust does not qualify for the primary residence exclusion when the property is sold.

    Consider a simplified example:

    A person purchases a home in their own name for R2 million. Many years later, the property is sold for R6 million.

    Ignoring other allowable costs and adjustments, the capital gain may be approximately R4 million. If the property qualifies as the individual’s primary residence, the R3 million primary residence exclusion may substantially reduce the taxable gain.

    If the same home is owned by an ordinary family trust, that exclusion will generally not be available.

    This does not mean that a primary residence should never be held in a trust. It means that the loss of the exclusion and the trust’s capital gains tax treatment must be weighed against any genuine estate-planning or asset-protection benefit.

    What happens if the property is sold to the trust?

    Instead of donating a property, people are often advised to sell it to the family trust.

    The trust may not have enough money to pay the purchase price. The amount is then recorded as a loan owing by the trust to the seller.

    This is commonly referred to as a loan account.

    The property may then be registered in the trust’s name, but the loan account becomes an asset belonging to the seller.

    If the seller dies while the loan remains outstanding, the value of that loan may still form part of the seller’s deceased estate.

    Therefore, selling an asset to a trust on loan account does not necessarily remove the value of the asset from the person’s estate immediately. The property may no longer be owned personally, but it has effectively been replaced by a debt owed to the person.

    There may also be tax consequences where a loan is interest-free or bears interest at less than the official rate.

    Section 7C of the Income Tax Act may treat the interest benefit arising from certain low-interest or interest-free loans to connected trusts as a deemed annual donation.

    There are exceptions and specific rules, including limited circumstances involving a qualifying primary residence. However, the arrangement must be carefully examined rather than assuming that an interest-free loan has no tax consequences.

    Donating the property can trigger donations tax

    Another option sometimes suggested is to donate the property to the trust.

    A donation is not necessarily tax-free merely because the beneficiaries of the trust are the donor’s spouse, children or other relatives.

    Donations tax is generally charged at:

    • 20% on the aggregated value of taxable donations up to R30 million; and
    • 25% on the portion exceeding R30 million.

    Certain exemptions may apply. For example, a natural person currently receives an annual donations-tax exemption of R100,000.

    However, that exemption is unlikely to cover the value of an ordinary residential property.

    Where an asset is sold to a trust for substantially less than its market value, the difference between the consideration and the market value may also have donations-tax implications.

    Transferring a property to a company presents similar concerns

    Some people are advised to transfer their home or investment property into a private company rather than a trust.

    A company can be useful for conducting a genuine business or holding certain commercial assets. However, a company does not ordinarily receive the primary residence exclusion available to an individual.

    The transfer into the company may also trigger transfer duty, capital gains tax and transfer costs.

    When the company later sells the property, tax may arise in the company. Further tax consequences may follow when the proceeds are extracted from the company for the personal use of its shareholders.

    The fact that the company’s shares are owned by the same family does not mean that the company and the family members are treated as the same taxpayer.

    Trusts have ongoing costs and responsibilities

    The cost of a trust does not end once the trust deed has been signed and the trustees have been appointed.

    A trust must be properly administered as a separate legal arrangement.

    Depending on its activities and assets, proper administration may include:

    • Maintaining a separate trust bank account;
    • Keeping complete accounting records;
    • Preparing annual financial statements;
    • Submitting annual tax returns;
    • Maintaining beneficial ownership information;
    • Holding trustee meetings;
    • Preparing and signing trustee resolutions;
    • Recording loans and distributions correctly;
    • Complying with the terms of the trust deed;
    • Ensuring that trustees act jointly when required; and
    • Keeping trust property separate from the personal property of trustees and beneficiaries.

    SARS has increasingly focused on trust compliance and has issued final demands to trusts that failed to submit annual tax returns.

    A trust should therefore not be created and then forgotten.

    Poor administration may undermine the purpose of the trust and create tax, legal and accounting difficulties for the trustees and beneficiaries.

    A trust is not simply an extension of the founder

    Once an asset has been transferred into a trust, it no longer belongs to the founder personally.

    The trustees must administer the asset for the benefit of the beneficiaries and in accordance with the trust deed.

    The founder cannot simply continue dealing with the asset as though it remains their personal property.

    For example, the founder should not use the trust bank account as a personal account, sell trust assets without proper trustee authority or withdraw trust money whenever they choose.

    Where one person exercises complete personal control over the trust and ignores the duties of the other trustees, the trust may be exposed to challenge. In appropriate circumstances, creditors or other parties may argue that the trust has been used as the founder’s alter ego.

    A trust offers the strongest protection when it is created for a genuine purpose and administered independently and correctly.

    When can a family trust be useful?

    Despite the possible costs and tax consequences, a trust can still be an important estate-planning tool.

    A family trust may be useful where there is a genuine need to:

    • Preserve assets for future generations;
    • Protect assets intended for minor children;
    • Provide for a beneficiary with a disability or special needs;
    • Retain property or investments within a family structure;
    • Hold assets that are expected to increase substantially in value;
    • Facilitate continuity after the death of a founder;
    • Separate control of assets from the right to benefit from them;
    • Protect beneficiaries who are not financially experienced; or
    • Hold shares or business interests as part of a broader succession plan.

    The potential benefit is often greater where appreciating assets are acquired by the trust from the outset, rather than being transferred into the trust only after they have already increased considerably in value.

    However, even in those circumstances, the structure should be considered together with the person’s will, marital regime, existing liabilities, estate-duty exposure, family circumstances and long-term intentions.

    Asset protection is not guaranteed

    People are often told that a trust will protect all their assets from creditors.

    That statement is too broad.

    Assets properly owned and administered by a trust are generally not the personal assets of a trustee, founder or beneficiary. However, simply transferring assets into a trust does not guarantee that they will be protected in every situation.

    A transfer made with the intention of prejudicing existing creditors may be challenged.

    Protection may also be weakened where:

    • The founder continues treating trust property as personal property;
    • Trustees do not exercise independent judgment;
    • Trustee resolutions are not properly adopted;
    • The trust deed is ignored;
    • Trust and personal funds are mixed;
    • The transfer was simulated or not genuinely implemented; or
    • The trust is effectively used as the founder’s alter ego.

    A trust should therefore not be established only after financial trouble has already arisen, with the expectation that assets can simply be placed beyond the reach of creditors.

    Compare the costs with the expected benefit

    Before transferring an asset into a trust or company, a proper calculation should be completed.

    This should consider:

    1. The current market value and original cost of the asset;
    2. The capital gains tax that may arise on transfer;
    3. Transfer duty and conveyancing costs;
    4. Donations tax or loan-account implications;
    5. The expected future growth in the asset;
    6. The tax consequences when the asset is eventually sold;
    7. The loss of any personal tax exemptions or exclusions;
    8. The annual cost of administering the structure;
    9. The estate duty that may genuinely be saved; and
    10. The family’s long-term succession and asset-protection objectives.

    In some cases, the benefits of a trust will justify the immediate and ongoing costs.

    In other cases, particularly where the family’s main asset is its primary residence, transferring the property may cost considerably more than the eventual benefit.

    Obtain advice before transferring valuable assets

    A family trust should be created for a clearly identified purpose—not simply because someone has said that every family should have one.

    The person advising on the structure should be able to explain:

    • Why the trust is required;
    • Which assets should be placed in it;
    • Which assets should remain outside it;
    • What the immediate tax and transfer costs will be;
    • How the trust will be funded;
    • How any loan account will be treated;
    • What the ongoing annual costs will be;
    • What happens when an asset is sold;
    • How the trust interacts with the person’s will; and
    • What will happen when the founder, trustee or beneficiary dies.

    A trust can form an important part of a sound estate plan. However, transferring a primary residence, investment property, business interest or other valuable asset into a trust without first calculating the consequences can create unnecessary tax and expense.

    The correct structure depends on the assets involved, the reason for creating the trust and the family’s long-term objectives.

    How Estate Assist can help

    Estate Assist by Cloete Inc assists individuals, families, trustees and beneficiaries with practical trust and deceased-estate matters.

    We can assist with:

    • Reviewing an existing trust and its administration;
    • Explaining the relationship between a trust and a deceased estate;
    • Changes to trustees and beneficiaries;
    • Master’s Office applications and follow-ups;
    • Obtaining trust documents and Letters of Authority;
    • Updating trust records;
    • Coordinating trust planning with a will and estate plan; and
    • Practical assistance where a founder, trustee or beneficiary has died.

    Before transferring a valuable asset into a trust or company, appropriate legal, tax and accounting advice should be obtained based on the person’s specific circumstances.

    For assistance, contact Estate Assist:

    Phone or WhatsApp: 081 330 7820

    Website: www.estateassist.co.za

    This article provides general information and should not be regarded as individual legal, tax or financial advice. Tax rates, exclusions and legislation may change, and advice should be obtained before implementing any transaction.

  • Can an Executor Take Estate Money for Legal Fees?

    Can an Executor Take Estate Money for Legal Fees?

    When a person passes away, the executor is placed in a position of trust.

    The executor must collect the assets, deal with creditors, prepare the liquidation and distribution account, communicate with beneficiaries, and eventually distribute the estate according to the will or the law of intestate succession.

    But what happens when the executor is also an attorney?

    And more importantly, what happens when estate funds are used to pay that attorney’s legal fees?

    This can become a serious concern for beneficiaries, especially where there is little or no money left in the estate and the beneficiaries are told that the funds were used for “legal fees”, “administration costs” or “work done on the estate”.

    An Executor Is Not Entitled to Treat Estate Money as Their Own

    Estate money belongs to the deceased estate.

    It does not belong to the executor, the attorney, the family, or any individual beneficiary until the estate has been properly administered and the money is lawfully distributed.

    The executor has a duty to deal with estate funds properly, account for the money received, and explain what payments were made from the estate.

    If an executor pays themselves or their firm from the estate, beneficiaries are entitled to ask important questions, including:

    • What work was done?
    • Was the fee agreed to?
    • Was the fee reasonable?
    • Was the payment reflected in the liquidation and distribution account?
    • Was the payment approved where approval was required?
    • Was the executor acting as executor, attorney, or both?
    • Was there a conflict of interest?

    Executor’s Fees and Legal Fees Are Not Always the Same Thing

    One common area of confusion is the difference between executor’s remuneration and legal fees.

    An executor is generally entitled to charge executor’s remuneration for administering the estate. In South Africa, this is usually calculated according to the prescribed tariff, unless a different fee was agreed or provided for in the will.

    Legal fees may be different.

    For example, if the estate becomes involved in a dispute, litigation, eviction, collection of debts, property transfer issue, or other legal process, an attorney may charge professional fees for that legal work.

    The problem arises when the same person is both the executor and the attorney.

    In that situation, the executor must be especially careful. They cannot simply use estate money as an open cheque book. There must be a proper basis for the fees, proper records, and proper accounting to the estate.

    Warning Signs Beneficiaries Should Not Ignore

    Beneficiaries should become concerned where:

    • The executor refuses to provide proper updates.
    • The estate had money, but the executor says there is now nothing left.
    • Large payments were made to the executor or the executor’s firm.
    • The executor cannot provide a clear fee breakdown.
    • The beneficiaries were never told that legal fees were being incurred.
    • The liquidation and distribution account does not properly explain the payments.
    • The executor is delaying the estate while continuing to charge fees.
    • The executor appears to be acting in their own interest instead of the estate’s interest.

    Not every fee charged to an estate is improper.

    Some estates are complicated. There may be disputes, missing documents, difficult heirs, unpaid debts, SARS issues, property problems, or litigation. These issues can create additional work and costs.

    But beneficiaries are still entitled to transparency.

    Can Beneficiaries Ask for a Breakdown?

    Yes.

    Beneficiaries and interested parties can request a proper explanation of what happened to the estate funds.

    Depending on the circumstances, they may ask for:

    • A copy of the liquidation and distribution account.
    • A schedule of payments made from the estate.
    • A breakdown of fees charged.
    • Copies of invoices rendered to the estate.
    • Proof that the payments were necessary and estate-related.
    • Confirmation of whether the Master approved any executor’s remuneration paid before distribution.
    • Confirmation of whether the executor acted personally, through a firm, or through another attorney.

    If the executor refuses to explain, that can itself be a red flag.

    The Master’s Office Can Be Asked to Intervene

    The Master of the High Court supervises deceased estates.

    Where beneficiaries believe that an executor has improperly used estate money, overcharged fees, failed to account, or acted in a conflict of interest, the matter can be raised with the Master’s Office.

    In serious cases, beneficiaries may also need to consider whether the executor should be removed, whether the account should be objected to, or whether further legal steps should be taken.

    If the executor is an attorney, a complaint to the Legal Practice Council may also be appropriate, especially where there are concerns about trust money, overreaching, failure to account, or improper conduct.

    Do Not Wait Until the Estate Is Empty

    Many beneficiaries wait too long.

    They assume the executor knows what they are doing. They do not want to cause conflict. They are told to “be patient”. Months or years pass. Eventually, they discover that the estate funds have been depleted and the explanation is simply that the money was used for fees.

    By that stage, the matter is often more difficult and expensive to fix.

    If something does not make sense, ask questions early.

    Estate Assist Can Help

    Estate Assist assists beneficiaries, heirs, executors and family members who are concerned about the administration of a deceased estate.

    We can help review the position, identify what documents should be requested, assist with Master’s Office follow-ups, and advise on practical next steps where an executor is not properly accounting for estate funds.

    If you are worried that an executor has taken estate money for fees, or if you are not receiving proper answers about the estate, contact Estate Assist.

    Phone / WhatsApp: 081 330 7820
    Website: www.estateassist.co.za

  • What If the Bank Is Executor and the Estate Is Not Moving?

    When a bank executor is dealing with a deceased estate, heirs and family members may feel helpless if the estate is not moving forward. The executor is responsible for administering the deceased estate properly and bringing the estate to finalisation.

    In many wills, a bank is nominated as the executor. This is common, especially where the will was prepared through the bank many years ago. In some matters, this works smoothly. In others, heirs and family members become frustrated because the estate appears to be standing still, communication is poor, or nobody seems to be taking practical responsibility for moving the matter forward.

    This can be extremely stressful for families, especially where there are dependants, outstanding expenses, estate property, vehicles, bank accounts, municipal accounts, or other practical matters that need attention.

    Why a Bank May Be Appointed as Executor

    A bank may be nominated as executor in a will where the deceased signed a will through the bank, used the bank’s estate planning services, or agreed to appoint the bank as the professional executor.

    After death, the nominated executor must still be formally appointed by the Master of the High Court before it can act officially. Once appointed, the executor must take control of the estate administration process and deal with the assets, liabilities, estate bank account, advertisements, liquidation and distribution account, heirs, creditors and final distribution.

    Common Problems Families Experience

    Families often contact us when they feel that the estate is not moving forward.

    Some of the common complaints include:

    • they do not receive proper updates;
    • they cannot get hold of the correct person;
    • the estate is handled by a department rather than a specific person they can speak to;
    • documents are requested more than once;
    • months pass without visible progress;
    • heirs are unsure whether the estate has been reported properly;
    • the family does not know whether Letters of Executorship have been issued;
    • the estate bank account has not been opened;
    • the liquidation and distribution account has not been prepared;
    • the Master’s Office has raised queries and nobody appears to be resolving them;
    • the heirs feel that the matter is not receiving urgent attention.

    Not every delay is the executor’s fault. Deceased estates can be delayed by missing documents, Master’s Office backlogs, disputes between heirs, tax issues, property transfers, creditor claims, bond cancellations, municipal figures and other practical problems.

    However, heirs are entitled to proper communication and reasonable progress. A deceased estate should not simply disappear into a system with no meaningful feedback.

    Can the Bank Be Removed or Replaced?

    In certain circumstances, it may be possible for the bank to step aside or renounce its appointment, especially where the heirs and interested parties agree that another suitable person or professional should take over the administration.

    This depends on the facts of the matter, the wording of the will, whether the bank has already been formally appointed, what work has already been done, and whether the Master will accept the proposed change.

    It is not always as simple as sending one email and demanding that the bank be removed. The correct process must be followed, and the Master’s Office must be dealt with properly.

    Where the matter is handled correctly, however, it may be possible to move the estate from a slow or inactive administration process into a more practical and hands-on process.

    We Have Assisted in Matters Like This

    Estate Assist by Cloete Inc has assisted families in matters where a bank had been appointed or nominated as executor, but the heirs were unhappy with the progress of the estate.

    In appropriate matters, we have helped clients engage with the bank, obtain clarity, deal with the necessary documents, and where possible, assist with the process of having the estate administration moved into more active hands.

    In several matters, once the administration was taken over or properly driven forward, the estates were finalised much more quickly and efficiently, and the clients were very satisfied with the outcome.

    Every estate is different, but the important point is this: heirs do not have to remain completely passive where an estate is not progressing.

    What Should Heirs Do First?

    If the bank is the executor and you are concerned about the lack of progress, it is useful to first establish the basic facts.

    You should try to confirm:

    • whether the estate has been reported to the Master;
    • whether Letters of Executorship have been issued;
    • who exactly is handling the estate;
    • whether an estate bank account has been opened;
    • what documents are still outstanding;
    • whether any advertisements have been placed;
    • whether the liquidation and distribution account has been prepared;
    • whether the Master has raised any queries;
    • what the expected next step is;
    • whether the heirs have received a proper written update.

    It is usually better to request a clear written update rather than relying only on telephone conversations.

    Warning Signs That the Estate May Need Attention

    Families should consider getting assistance if:

    • months have passed with no proper explanation;
    • the executor does not respond to reasonable requests;
    • heirs receive vague or repeated excuses;
    • no one can explain what the next step is;
    • the Master’s Office has raised queries that are not being resolved;
    • the estate has assets or debts that require urgent attention;
    • property, vehicles or accounts are deteriorating or causing further losses;
    • heirs are being left in the dark;
    • there appears to be no practical plan to finalise the estate.

    A delay by itself does not always mean there is wrongdoing. But a lack of communication and lack of progress should be taken seriously.

    Can Estate Assist Help?

    Estate Assist by Cloete Inc assists families, heirs, executors and authorised representatives with practical deceased estate administration support.

    This may include:

    • reviewing the current status of the estate;
    • helping heirs understand what should have happened by now;
    • preparing practical follow-up requests;
    • engaging with the executor or nominated executor;
    • assisting with Master’s Office follow-ups;
    • helping obtain clarity on Letters of Executorship or Letters of Authority;
    • assisting with estate administration steps;
    • helping families understand whether a change of executor may be possible;
    • supporting the process where an estate needs to be moved forward urgently.

    We do not believe families should be left confused, ignored or helpless when a deceased estate is not moving.

    Final Thought

    A bank can be appointed as executor, but that does not mean the estate should remain stuck indefinitely.

    If the estate is not progressing, heirs should first obtain proper information, identify the cause of the delay, and then consider the correct steps to move the matter forward.

    In some cases, the issue may simply be missing documents or a misunderstanding. In other cases, more active intervention may be needed.

    If you are dealing with a deceased estate where the bank is the executor and nothing seems to be happening, Estate Assist by Cloete Inc may be able to help you understand your options and take practical steps to move the estate forward.

    Estate Assist by Cloete Inc
    Phone / WhatsApp: 081 330 7820
    Email: admin@cloeteinc.co.za
    Website: estateassist.co.za

  • Can an Executor Take an Advance on Their Fees?

    One of the most common concerns heirs have in a deceased estate is whether the executor is allowed to pay themselves before the estate has been finalised.

    This concern usually arises when heirs see money leaving the estate bank account, or when they are told that the executor has already taken fees, even though the estate has not yet been distributed.

    So, can an executor take an advance on their fees?

    The short answer is: not simply because they want to.

    Executor’s fees must be properly authorised, calculated and accounted for. An executor should not treat estate money as their own money, and any payment of executor’s fees should be capable of being explained and justified.

    Executor’s fees are regulated

    An executor is usually entitled to be paid for administering a deceased estate.

    In South Africa, executor’s remuneration may be fixed in the will. If the will does not fix the remuneration, the fee is generally assessed according to the prescribed tariff and is taxed by the Master.

    This means that executor’s fees are not supposed to be a random amount decided by the executor without explanation. The fee should be calculated with reference to the estate, reflected in the Liquidation and Distribution Account, and capable of being reviewed.

    The Master also has the power, in appropriate circumstances, to reduce or disallow remuneration where the executor has failed to discharge their duties properly or has administered the estate in an unsatisfactory manner.

    Can the executor pay themselves before the estate is finalised?

    As a general rule, an executor is not entitled to receive remuneration before the estate has been distributed, unless the payment has been approved in writing by the Master.

    This is an important safeguard.

    It means that an executor should be very careful before taking an “advance” on executor’s fees from estate funds. If there is no proper authority, no written approval, no explanation, no invoice, no estate account, or no transparency, the heirs are entitled to be concerned.

    An executor who believes that an advance is justified should be able to explain:

    • why the advance was taken;
    • how the amount was calculated;
    • whether the Master approved the payment in writing;
    • where the payment is reflected in the estate records;
    • whether the payment will be reflected in the Liquidation and Distribution Account;
    • whether the heirs have been informed;
    • whether there are still creditors, taxes or estate expenses to be paid.

    Why taking fees early can be a problem

    A deceased estate is administered for the benefit of creditors and heirs. Estate money must be preserved, recorded and applied properly.

    If an executor takes fees too early, it can create several problems.

    For example:

    • there may not be enough money left to pay creditors;
    • SARS or estate expenses may still be outstanding;
    • the estate may not yet have been properly calculated;
    • the Liquidation and Distribution Account may not yet have been prepared;
    • the heirs may not know whether the fee is correct;
    • the executor may have taken more than they are entitled to;
    • the payment may not have been approved by the Master;
    • the executor may be unable or unwilling to account for the money.

    Even where the executor eventually becomes entitled to fees, that does not mean they can take estate funds casually or secretly before the estate is ready for distribution.

    Is it a criminal offence for an executor to take fees early?

    Not every irregular payment is automatically a criminal offence.

    Whether taking executor’s fees early amounts to a criminal offence depends on the facts.

    A mistake, misunderstanding or premature payment may need to be corrected and accounted for. However, the situation becomes much more serious where there is dishonesty or misappropriation of estate funds.

    For example, criminal concerns may arise where an executor:

    • takes estate money for personal use without proper authority;
    • hides the payment from the heirs or the Master;
    • creates false explanations for the payment;
    • takes more than they are entitled to;
    • refuses to repay money that was improperly taken;
    • refuses to provide bank statements or accounting records;
    • says the estate has no money left but cannot explain where it went;
    • uses estate funds for expenses unrelated to the estate;
    • conceals the payment in the estate records.

    In those circumstances, the issue may no longer be only an estate administration problem. It may also raise civil, regulatory and potentially criminal concerns.

    The key question is not only whether the executor received money. The key question is whether the executor was entitled to receive it at that stage, whether it was properly approved and accounted for, and whether the executor acted honestly.

    What should heirs ask for?

    If heirs discover that the executor has taken fees before the estate has been finalised, they should first try to establish the facts.

    Useful questions include:

    • Has the estate been reported to the Master’s Office?
    • Have Letters of Executorship or Letters of Authority been issued?
    • Has an estate bank account been opened?
    • Has the executor prepared the Liquidation and Distribution Account?
    • Has the fee been reflected in the estate account?
    • How was the fee calculated?
    • Was the fee fixed in the will?
    • Was the fee based on the prescribed tariff?
    • Did the Master approve the early payment in writing?
    • Are there invoices, bank statements and supporting documents?
    • Are there still creditors, SARS payments or estate expenses outstanding?

    A proper executor should be able to provide a reasonable explanation and a proper paper trail.

    Warning signs heirs should not ignore

    Heirs should be cautious where an executor:

    • pays themselves before the estate is finalised without explanation;
    • refuses to confirm whether the Master approved the payment;
    • cannot explain how the fee was calculated;
    • refuses to provide estate bank statements;
    • avoids written communication;
    • becomes defensive when asked for basic accounting;
    • delays the estate but still takes fees;
    • pays themselves while creditors or heirs remain unpaid;
    • mixes estate funds with personal funds;
    • cannot show where estate money has gone.

    These issues should not be ignored. Estate money must be properly accounted for.

    What can Estate Assist do?

    Estate Assist by Cloete Inc assists families, heirs, executors and authorised representatives with practical deceased estate administration support.

    Where there are concerns about executor’s fees, estate funds or a lack of transparency, Estate Assist can assist with:

    • checking the status of the deceased estate;
    • identifying who has authority to act;
    • reviewing estate administration progress;
    • requesting updates from executors;
    • asking for estate bank statements and supporting documents;
    • reviewing Liquidation and Distribution Account issues;
    • following up with the Master’s Office;
    • assisting heirs where there are concerns about fees, payments or estate money.

    Need help with a deceased estate?

    If you are concerned that an executor has taken fees early, or if estate money is not being properly accounted for, Estate Assist can help you assess the position and consider the practical steps available.

    Phone / WhatsApp: 081 330 7820
    Email: admin@cloeteinc.co.za
    Website: estateassist.co.za

  • Why a Deceased Estate Should Have a Separate Bank Account

    When a person passes away, their money, assets and liabilities do not simply become the personal property of the heirs or the executor.

    The deceased estate must be properly administered. This usually means that estate money should be collected, preserved, recorded and paid out through a proper estate administration process.

    One of the most important practical safeguards in a deceased estate is the use of a separate estate bank account.

    A deceased estate bank account helps keep estate money separate, traceable and easier to account for.

    Why is a separate estate bank account important?

    A separate estate bank account helps create a clear financial record of the estate.

    Money belonging to the estate should not be mixed with the executor’s personal funds, the heirs’ personal accounts, or the bank account of another person or business. If estate money is mixed with other money, it can become difficult to determine what was received, what was paid, who was paid, and whether the estate funds were properly used.

    A separate estate bank account helps show:

    • what money came into the estate;
    • what estate expenses were paid;
    • whether creditors were paid;
    • whether SARS, rates, bond or other liabilities were dealt with;
    • whether executor’s fees or administration costs were paid;
    • when distributions were made to heirs;
    • what balance remains in the estate.

    This is important because an executor does not administer the estate for their own benefit. The executor administers the estate in a fiduciary capacity and must be able to account for the estate assets and funds.

    What happens when there is no clear bank account?

    Problems often arise where an executor receives estate money into a personal account, pays expenses informally, or cannot provide a proper record of estate transactions.

    This can create serious concerns, especially where:

    • estate funds were paid into the executor’s personal bank account;
    • the executor cannot explain what happened to the money;
    • heirs are told that there is no money left, but no proof is provided;
    • estate expenses are paid without invoices or supporting documents;
    • the executor refuses to give proper updates;
    • distributions are delayed without explanation;
    • the heirs cannot see how the estate funds were calculated or used.

    Not every delay means that something is wrong. Deceased estates can be delayed by missing documents, SARS issues, Master’s Office queries, property transfers, creditor claims, family disputes or banking delays.

    However, where there is estate money and no clear paper trail, the heirs are entitled to be concerned.

    Should heirs be allowed to see the estate bank statements?

    In practice, heirs should usually be able to receive proper information about the financial position of the estate.

    This does not mean that heirs control the estate or can interfere with every decision made by the executor. The executor has duties to perform and must follow the correct estate administration process.

    However, heirs have a direct interest in the estate. They are entitled to expect transparency, proper accounting and reasonable explanations regarding estate money.

    At the very least, an executor should be able to explain:

    • where the estate money is being held;
    • what funds have been received;
    • what expenses have been paid;
    • what documents support those payments;
    • whether an estate bank account has been opened;
    • when the Liquidation and Distribution Account will be prepared or lodged;
    • what amount is expected to be available for distribution.

    Where the executor refuses to provide any bank statements, proof of payments, supporting documents or accounting information, that should be treated as a warning sign.

    The Liquidation and Distribution Account is not the only source of accountability

    The Liquidation and Distribution Account is the formal estate account that sets out the assets, liabilities, administration costs and proposed distribution of the estate.

    Once the account has been examined by the Master and advertised, it lies open for inspection. Interested parties may inspect the account and may raise objections if there are proper grounds to do so.

    However, families often need practical information before that stage.

    If an estate has been delayed for months or years, heirs should not simply be told to wait without any meaningful update. A proper executor should be able to provide a reasonable explanation of what has happened, what is outstanding and what the estate’s financial position appears to be.

    Warning signs heirs should not ignore

    Heirs should be cautious where an executor:

    • refuses to confirm whether an estate bank account exists;
    • receives estate money into a personal account;
    • refuses to provide any bank statements or proof of payments;
    • cannot explain what happened to estate funds;
    • pays themselves fees without explanation;
    • delays distribution without giving proper reasons;
    • avoids written communication;
    • becomes hostile when asked for basic financial information;
    • says “just trust me” but provides no documents.

    A properly administered estate should have a paper trail.

    The executor may not always be able to answer every question immediately, especially while information is still being collected. But there should be a reasonable level of transparency and accountability.

    What can heirs do if they are worried?

    If heirs are concerned about estate money or a lack of transparency, they should first try to establish the facts.

    Important questions include:

    • Has the estate been reported to the Master’s Office?
    • Have Letters of Executorship or Letters of Authority been issued?
    • Who is officially authorised to act?
    • Has an estate bank account been opened?
    • What money has been received by the estate?
    • What expenses have been paid?
    • Has the executor prepared the Liquidation and Distribution Account?
    • Has the account been lodged with the Master?
    • Has the account lain open for inspection?
    • Has any distribution already taken place?

    Once these facts are known, it is easier to decide what practical steps may be available.

    This may include requesting a written update, asking for supporting documents, checking the Master’s Office position, reviewing the estate account, assisting with objections where appropriate, or taking further steps if estate funds appear to have been misused.

    Estate Assist can help

    Estate Assist by Cloete Inc assists families, heirs, executors and authorised representatives with practical deceased estate administration support.

    This includes assistance with:

    • checking the status of a deceased estate;
    • identifying who has authority to act;
    • reviewing estate administration progress;
    • requesting updates from executors;
    • following up with the Master’s Office;
    • reviewing Liquidation and Distribution Account issues;
    • assisting heirs where there are concerns about estate funds or lack of transparency.

    If you are an heir and you are concerned that estate money is not being properly accounted for, Estate Assist can help you assess the position and consider the practical steps available.

    Phone / WhatsApp: 081 330 7820
    Website: estateassist.co.za

  • What Can You Do If the Executor of an Estate Is Not Doing Their Job?

    When a person passes away, their will may nominate a specific person, bank, trust company, accountant, attorney or other professional to act as the executor of the deceased estate.

    In many cases, this works well. The nominated executor accepts the appointment, reports the estate, obtains the necessary authority from the Master’s Office, opens the estate late bank account, deals with creditors, prepares the estate accounts and eventually distributes the estate to the heirs.

    Unfortunately, this does not always happen smoothly.

    In some estates, the nominated executor is slow to act, difficult to communicate with, unwilling to provide proper feedback, or simply not progressing the administration of the estate. This can leave heirs and family members feeling frustrated and powerless, especially when important estate matters remain unresolved for months or even years.

    Are the heirs stuck with the executor named in the will?

    Not necessarily.

    The fact that someone is named as executor in a will does not always mean that the estate must remain with that person indefinitely, regardless of what happens.

    There are different situations that can arise. For example:

    • the nominated executor may decide not to accept the appointment;
    • the nominated executor may agree to renounce or step aside;
    • the Master’s Office may require further documents before issuing authority;
    • the heirs may nominate another suitable person where appropriate;
    • in more serious cases, steps may need to be taken where an appointed executor is failing to perform their duties properly.

    Every estate must be considered on its own facts. The correct approach will depend on whether the executor has already been formally appointed, whether Letters of Executorship or Letters of Authority have already been issued, what the will says, what the heirs want, and what stage the estate has reached.

    A common problem: professional executors who are slow or unresponsive

    Families are often surprised when a professional institution or nominated executor does not move the estate forward as expected.

    This can happen for many reasons. The executor may have a large number of files, the estate may be regarded as too small or administratively inconvenient, there may be delays in collecting information, or the heirs may simply not be receiving proper updates.

    Whatever the reason, the practical effect is often the same: the family cannot access proper information, assets remain frozen, estate expenses build up, and the heirs do not know what their options are.

    In some cases, the best solution may be to engage with the nominated executor and request that they formally renounce or step aside so that a more suitable person can be appointed. This is not always possible, but where it is, it can sometimes save the family significant time and frustration.

    What should heirs do before taking action?

    Before accusing an executor of wrongdoing, it is important to first establish the facts.

    The family should try to determine:

    • whether the estate has been reported to the Master’s Office;
    • whether Letters of Executorship or Letters of Authority have been issued;
    • who is officially appointed to act;
    • what documents are still outstanding;
    • whether an estate late bank account has been opened;
    • whether the executor has prepared or lodged the required estate account;
    • what communication has already taken place;
    • whether the delay is caused by the executor, the heirs, the Master’s Office, SARS, creditors, banks or missing information.

    This step is important because not every delay is caused by a negligent executor. Deceased estates often involve several institutions, and one missing document can delay the entire process.

    However, where the executor is not communicating, not providing proper updates, or not taking reasonable steps to progress the estate, the heirs may need assistance to determine the next practical step.

    Can an executor be removed?

    In serious cases, an executor may be removed from office, but this is not the first step in every matter.

    Removal is usually more complicated than simply being unhappy with the executor. There must generally be proper grounds, supporting facts and a clear explanation of why the executor should no longer continue.

    Depending on the circumstances, the more practical solution may be to:

    • request a proper written update from the executor;
    • identify exactly what is delaying the estate;
    • ask the nominated executor to renounce if they have not yet accepted appointment;
    • request that the appointed executor be released where appropriate;
    • approach the Master’s Office with a properly motivated request;
    • obtain the necessary nominations or consents from the heirs;
    • appoint a more suitable person or professional to move the estate forward.

    The correct route depends on the status of the estate and the documents already issued.

    Why proper guidance is important

    Families often lose time because they do not know who has authority, what documents are needed, or how to communicate with the executor or Master’s Office.

    A short, properly structured intervention can sometimes make a major difference. This may involve reviewing the will, checking the Master’s Office position, identifying the appointed executor, preparing correspondence, obtaining heir nominations, or assisting with the documents needed to move the estate forward.

    The goal is not always to fight with the executor. In many cases, the goal is simply to get the estate moving again.

    Estate Assist can help

    Estate Assist by Cloete Inc assists families, heirs, executors and authorised representatives with practical deceased estate administration support.

    This includes assistance with:

    • reviewing the current status of an estate;
    • identifying whether an executor has been appointed;
    • communicating with nominated or appointed executors;
    • preparing requests for updates;
    • assisting with renunciation or nomination documents where appropriate;
    • Master’s Office follow-ups;
    • estate reporting guidance;
    • practical steps to move delayed estates forward.

    If your family is struggling with an executor who is not progressing a deceased estate, Estate Assist can help you assess the position and consider the practical options available.

    Phone / WhatsApp: 081 330 7820
    Website: estateassist.co.za

  • Letters of Authority vs Letters of Executorship in South Africa

    When a deceased estate is reported in South Africa, the person dealing with the estate usually needs formal authority from the Master of the High Court before assets can be administered or distributed.

    Two terms families often come across are Letters of Authority and Letters of Executorship. They sound similar, but they are not the same.

    Understanding the difference is important because it affects who may deal with the estate, what process must be followed and what banks, insurers, creditors and other institutions may require.

    1. Why formal authority is needed

    A family member cannot simply take control of estate assets because they are related to the deceased.

    The estate must be dealt with by a properly authorised person. The Administration of Estates Act provides that a deceased estate may not be liquidated or distributed unless this is done under letters of executorship or under a direction by the Master.

    This is why banks and other institutions usually require proof of appointment before they will release information, close accounts or pay estate funds.

    2. What are Letters of Executorship?

    Letters of Executorship are issued by the Master of the High Court when a person is formally appointed as executor of a deceased estate.

    This usually applies where the estate is above the small-estate threshold or where the estate requires the full administration process.

    The Department of Justice explains that if the value of the estate exceeds R250,000, Letters of Executorship must be issued and the full process under the Administration of Estates Act must be followed.

    The executor is then responsible for administering the estate properly, which may include:

    • identifying assets and liabilities;
    • opening an estate late bank account where required;
    • dealing with creditors;
    • preparing and lodging the Liquidation and Distribution Account;
    • communicating with heirs and relevant institutions;
    • distributing the estate once legally permitted.

    3. What are Letters of Authority?

    Letters of Authority are generally used for smaller estates where the Master may dispense with the full executorship process.

    The Department of Justice notes that where the estate is less than R250,000, the Master may dispense with Letters of Executorship and issue Letters of Authority in terms of section 18(3) of the Administration of Estates Act.

    A person appointed under Letters of Authority is often referred to as the Master’s representative.

    This process is usually simpler than a full executorship, but the representative must still act properly and within the authority given by the Master.

    4. Main difference between the two

    The simplest way to understand the difference is this:

    Letters of Executorship are used for estates that require the full estate administration process.

    Letters of Authority are usually used for smaller estates where the Master gives directions under section 18(3).

    Both documents give authority to deal with the estate, but they are not interchangeable. The value and circumstances of the estate will determine which appointment is required.

    5. Which one do banks and institutions require?

    Banks, insurers and other institutions will usually ask for either:

    • Letters of Executorship; or
    • Letters of Authority.

    They need to know that the person giving instructions has been appointed by the Master.

    If the wrong document is supplied, or if no appointment has been issued yet, the institution may refuse to release information or process payments.

    6. What documents may be needed when reporting the estate?

    The reporting documents may differ depending on the value and circumstances of the estate.

    The Department of Justice lists documents that may be required when reporting an estate, including the Death Notice, death certificate, marriage documents where applicable, nominations by heirs where needed, acceptance forms, inventory information and other supporting documents.

    The Department of Justice forms page also confirms that a Letter of Authority under section 18(3) and a Letter of Executorship under sections 13 and 14 must be obtained from the Office of the Master.

    7. Can the appointment change later?

    Yes, it can happen in certain circumstances.

    For example, if an estate was initially treated as a small estate but it later becomes clear that the assets exceed the relevant threshold, the matter may need to be dealt with differently.

    The standard section 18(3) undertaking also refers to the representative undertaking not to administer assets not reflected in the inventory and to report to the Master if the value of the assets exceeds R250,000.

    This is one reason why it is important to identify the estate assets and liabilities as accurately as possible when the estate is reported.

    8. Why this distinction matters

    The difference between Letters of Authority and Letters of Executorship affects the whole administration process.

    It can affect:

    • what forms must be completed;
    • who may deal with estate assets;
    • whether a full Liquidation and Distribution Account is required;
    • how creditors and heirs are dealt with;
    • how long the process may take;
    • what banks and institutions will accept.

    Families often experience delays because they are unsure which process applies or because the estate was not reported with the correct supporting information.

    Need help with a deceased estate?

    Estate Assist by Cloete Inc assists families, executors and authorised representatives with practical deceased estate administration support.

    We assist with estate reporting guidance, Master’s Office follow-ups, estate financial administration, Liquidation and Distribution Account support and estate finalisation assistance.

    Phone / WhatsApp: 081 330 7820
    Website: estateassist.co.za

  • What to Do When Someone Dies in South Africa

    A deceased estate usually includes the deceased person’s assets, liabilities, bank accounts, policies, property, personal belongings and any other financial affairs that must be dealt with after death.

    This article provides a practical overview of the first steps to take when someone dies in South Africa.

    1. Obtain the death certificate

    The first practical step is to obtain the death certificate. This document will be needed for reporting the estate, dealing with banks, insurance companies, pension funds and other institutions.

    Where possible, keep certified copies available, as many institutions may request them.

    2. Check whether there is a will

    The family should try to establish whether the deceased left a valid will.

    The will may nominate an executor and may set out how the deceased wanted the estate to be distributed. If there is no will, the estate will be dealt with as an intestate estate, meaning the heirs are determined according to the applicable rules of intestate succession.

    If a will exists, the original will should be kept safely, as it may need to be submitted when the estate is reported.

    3. Identify the correct person to deal with the estate

    A family member should not simply start dealing with estate assets without proper authority.

    Depending on the estate, the Master of the High Court may issue either Letters of Executorship or Letters of Authority. The Department of Justice notes that these letters must be obtained from the Office of the Master.

    Until the correct appointment is made, banks and other institutions may refuse to deal with family members.

    4. Report the estate to the Master’s Office

    The deceased estate must be reported to the Master of the High Court or, in certain cases, through a service point.

    The reporting documents will depend on the value and circumstances of the estate. The Department of Justice lists documents such as the original will, Next-of-Kin Affidavit where there is no valid will, inventory of assets, creditors list where applicable, nominations by heirs in certain cases, and certified ID documents for the person to be appointed.

    Common documents may include:

    • death certificate;
    • certified copy of the deceased’s ID;
    • original will, if available;
    • marriage certificate or divorce order, if applicable;
    • inventory of assets;
    • details of creditors and liabilities;
    • details of heirs;
    • nominated executor or representative documents.

    5. Understand Letters of Authority vs Letters of Executorship

    Not all estates are handled in the same way.

    For smaller estates, the Master may issue Letters of Authority under section 18(3). For larger or more complex estates, Letters of Executorship may be required. The Department of Justice forms page confirms that a Letter of Authority under section 18(3) and a Letter of Executorship under sections 13 and 14 are obtained from the Office of the Master.

    This distinction is important because it affects who may act, what process must be followed, and what institutions will require before releasing information or funds.

    6. Gather information about assets and liabilities

    The estate cannot be properly administered unless the assets and liabilities are identified.

    This may include:

    • bank accounts;
    • vehicles;
    • immovable property;
    • policies;
    • pension or retirement benefits;
    • business interests;
    • furniture and personal belongings;
    • debts, loans, credit cards and bond accounts;
    • municipal accounts;
    • SARS and tax matters.

    It is helpful to gather statements, policy documents, title deed information, vehicle papers and any correspondence from banks, insurers or creditors.

    7. Keep heirs informed where appropriate

    Estate administration can become frustrating when heirs do not know what is happening.

    Where legally permissible and subject to POPIA, confidentiality and the authority of the appointed executor or representative, heirs should be kept informed regarding the progress of the estate and the administration process.

    Clear communication can reduce conflict and help avoid misunderstandings.

    8. Get assistance where the process becomes confusing

    Deceased estate administration can involve the Master’s Office, banks, creditors, SARS, property issues, policies, estate accounts and distribution to heirs.

    Where the process becomes confusing, delayed or difficult to manage, it may be useful to obtain practical assistance.

    Estate Assist, a service by Cloete Inc, assists families, executors and authorised representatives with deceased estate administration support, including estate reporting guidance, Master’s Office follow-ups, estate financial administration, Liquidation and Distribution Account support and finalisation assistance.

    Need assistance with a deceased estate?

    Estate Assist by Cloete Inc provides practical and transparent deceased estate administration support.

    Phone / WhatsApp: 081 330 7820
    Website: estateassist.co.za