Deceased estates & trust administration
The same fiduciary discipline we bring to insolvent estates applies to solvent ones. Westrust practitioners are appointed as executors of substantial deceased estates and as trustees of family and testamentary trusts, often over more than one generation.
Administering a deceased estate in South Africa
Deceased estates are administered under the Administration of Estates Act 66 of 1965, under the supervision of the Master of the High Court. The estate must be reported to the Master, after which the Master issues letters of executorship to the executor nominated in the will, or letters of authority in smaller estates. Only once that authority is issued may the executor deal with estate assets.
From appointment, the process follows a defined sequence:
- Reporting and appointment — lodging the death notice, original will, inventory, and supporting documents with the Master.
- Securing and valuing assets — property, business interests, investments, policies, and personal effects, with formal valuations where the Master or estate duty position requires them.
- Advertising for creditors — the statutory notice calling on creditors and debtors to lodge claims, and adjudication of what is proved.
- The liquidation and distribution account — lodged with the Master, advertised, and open for inspection at the Master's office and relevant magistrate's court so that interested parties may object.
- Tax and estate duty — final income tax and capital gains position, the estate duty return, and clearance before distribution.
- Distribution and transfer — payment of cash legacies, transfer of immovable property, and delivery of residue to heirs or to a testamentary trust.
Complex estates rarely follow the sequence cleanly. Business interests may need to be traded or sold as going concerns, shareholder agreements may trigger buy-out mechanics, liquidity may need to be created to meet estate duty, and disputes between heirs or contested wills may need to be managed without stalling the administration. Where appropriate, our practitioners coordinate dedicated teams of domain experts across taxation, estate planning, trust formation and administration, and specialised accounting and legal services in order to protect the rights and interests of the estate's beneficiaries.
Trusts, and estates that cross borders
We accept appointment as trustee of substantial family, testamentary, and business trusts. Trustees in South Africa are regulated by the Trust Property Control Act 57 of 1988 and hold a demanding fiduciary standard: trust property must be kept separate and identifiable, the trust deed must be applied as written, beneficiaries must be dealt with even-handedly, and the trustee must be able to demonstrate an independent exercise of discretion. Beneficial ownership information must be kept current and lodged with the Master, and the trust's own tax position must be maintained.
An independent professional trustee is often the element that makes a family trust defensible. Where the founder, sole trustee, and principal beneficiary are effectively the same person, the trust's separate existence is exposed to attack — by SARS, by creditors, and in divorce proceedings. We take those appointments on the basis that the independence is real, which occasionally means declining an instruction that would compromise it.
Multi-jurisdictional estates
Where a deceased held assets in more than one country, the administration has to be coordinated rather than duplicated: domicile determines which law governs succession to movables, immovable property is generally governed by the law of its location, and situs-based taxes and double-tax agreements determine where duty is paid and what relief is available. We coordinate the South African administration and work with trusted specialist partners in the relevant jurisdictions, drawing on our INSOL International network for cross-border matters.
Where a deceased estate turns out to be insolvent, the estate is surrendered or sequestrated and administered under the Insolvency Act instead — a transition our practice handles from both sides.