Estate Assist – Cloete Inc

Tag: Master of the High Court

  • 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