The long and winding road
24 November 2022 16:00 by Nicolene Schoeman-Louw
Why are some deceased estates still marked with so much difficulty? Why does gut-wrenching conflict shadow so many legacies? Even when there is a Will?
Written by Nicolene Schoeman-Louw, Managing Director SchoemanLaw Inc, for LexisNexis South Africa.
Every attorney will tell you that it is critical to have a professionally drafted will and to ensure that you appoint the right executor to administer the deceased estate. Ultimately it aims to ensure that the administration of the deceased estate runs smoothly and without the added trauma of conflict.
The question is, then, why are some deceased estates still marked with so much difficulty? Why does gut-wrenching conflict shadow so many legacies? Even when there is a Will?
Ultimately the Will is the roadmap to the process. It details who "gets what" and generally appoints the executor. A professionally crafted will should, at the very least, contain this.
It is so that the Will itself is often questioned based on distrust between the heirs. However, for the most part, this is not a usual occurrence. To avoid this, it is critical that the Will is executed properly and the names and contact details of the witnesses listed – in case the validity of the Will is later questioned.
If it does not appoint the executor or if the executor refuses the appointment – it is then left to the family to make the nomination. The Master of the High Court often requires security to make such an appointment. However, the security requirement is often out of reach for many families. This is why Will's nomination and the security requirement waiver are crucial.
The Will may even detail funeral arrangements and wishes.
The practical challenge, even with a will, is that those personal items, often with sentimental value, not monetary value, become a bone of contention. These items are usually divided amongst family. Somewhat informally, to save the deceased estate on valuation costs.
Can squabbles over sentimental items be avoided, and what can we do now?
In many instances, beyond ensuring you have an updated, professionally drafted will, it is also advisable to gift as much as possible during your life. This is specific to people who may be downscaling to move into a smaller property or are already elderly. In many instances, however, this is not possible. In addition, it does not always safeguard your deceased estate from this dreaded conflict.
A "wish list", essentially an informal document filed with the Will, is a helpful tool to consider as it details without increasing the administration costs of how these items are to be divided. That said, it is not a legally binding document, like the Will, and therefore would not stand against the challenge of squabbling heirs.
A provision to make all assets into cash is often the last resort in the case of conflict but may be the source of much trauma. So, ultimately, where agreement cannot be reached, everything is sold, and cash proceeds are divided as directed by the Will.
This is notably the most critical person in wrapping up the deceased estate, who is responsible for all the administration surrounding it.
The duties of an executor include the following:
- identification and collection of the assets of the estate,
- the safeguarding and investment of those assets pending distribution to beneficiaries,
- the payment of debts and liabilities owed by the estate,
- the filing of appropriate tax returns for the deceased and the estate,
- and ultimately, the distribution of assets to beneficiaries following the provisions of the Will.
Although family members usually make funeral and burial arrangements, the executor has the legal authority to make those decisions. When making funeral and burial arrangements, unless the Will directs otherwise, an executor must ensure the costs are reasonable in light of all of the relevant circumstances.
Therefore, seeking legal advice and constructing your wishes clearly in a professionally crafted will is crucial. During your life, seek consensus between parties who may feel aggrieved and share your wishes transparently insofar as possible.
Managing Director SchoemanLaw Inc