The short answer
The present executor is allowed to finalise the two estates concurrently.
The whole question
Dear Athalie
Is it legal for the Estate Administrators to finalise the deceased estates of my mother and my father concurrently? My mother died intestate in 2015, while my father died in 2020, with a will. However, my father, who had been given the letter of executorship for my mother’s deceased estate, had not wound up the estate by the time he died, five years later, so my six children were obliged to start from scratch again. I don’t know why I have not received the cash that was in my late mother’s account, that my late father transferred to a new account, but did not spend.
The long answer
Where there is no will, the assets are distributed among the heirs according to the rules of intestate succession; where there is a will, the assets are distributed according to the provisions of that will. But your problem is whether your claims to your mother’s intestate estate are still valid, when her estate was not wound up as it should have been, now that your father has also died, leaving a will, which makes it a complicated situation.
Firstly, your mother’s estate should have been finalised within two years at most. Upon your father’s death, his executorship of your mother’s deceased estate ended automatically. Now that he too has died, the question of whether your mother’s intestate estate can still be settled before your father’s, or whether his own death means that the situation as regards what the heirs can inherit has changed fundamentally, as a result of his will, is one to which I could not find an answer. I would imagine that the executors appointed by the Master for your father’s estate would have to factor in what is owed to you as heirs of your mother’s intestate estate, but it is a complicated situation.
Since your mother’s estate was never finalised by your father as the executor before his own death, it may be that the present executor is allowed to finalise the two estates concurrently. I think that you need to consult a lawyer on these questions.
You could also consult the Chief Master of the High Court through this helpline: 012 406 4805, or email: chiefmaster@justice.gov.za) to get more information on this question.
The executor is the legal representative of the deceased person/s. An heir does not acquire ownership of the assets upon the death of the person. An heir has the right to enforce a claim only after the L&D Account has been confirmed by the Master.
In other words, the distribution of assets to the heirs comes last – after the estate has been wound up. That is why no cash has been distributed by the Estate Admin thus far.
The distribution of the assets to beneficiaries is done by:
What we do know is that when a person dies, their bank accounts are frozen. The executor must open a new bank account for the deceased estate and notify the Master in writing about the details of the account and send them the bank statements. The executor is not allowed to deposit monies from the deceased estate into a personal account of his own, which it seems your father may have done, although he did not spend the money.
Now that he too has died, the money in his accounts will also be frozen. The opening of a deceased estate account allows the executor to pay any liabilities (such as Master’s fees and the percentage owed to the executor) or creditors, and ultimately the heirs, once the Liquidation and Distribution Account (L&D) has been approved by the Master in terms of the Administration of Estates Act. The Executor has six months after the date of appointment in which to lodge a full Liquidation and Distribution Account with the Master.
In terms of the L&D Accounts, these can only be approved by the Master after they have lain open for inspection at the Master’s office or the Magistrate’s court for 21 days, to allow claims to be made against the estate or for objections to be lodged. In those 21 days, late claims can also be made against the estate.
Mohammed Moolla, in an article for de Rebus in 2022, says that:
“any person interested in the estate, may at any time before the expiry of the period allowed for inspection, lodge an objection in duplicate with any reasons for objection to any account. The Master shall deliver or transmit by registered post to the executor a copy of any objection with any documents in support thereof. The executor shall within 14 days after receipt of the copy of objection, transmit copies of their comments thereon to the Master. The Master shall consider the objection and comments of the executor and if the Master finds the objection is well-founded or the account is incorrect, they may direct the executor to amend the account or may give such direction as they may think fit. Any person aggrieved by any such direction of the Master or by the refusal of the Master to sustain an objection so lodged, may apply to the High Court within 30 days for an order to set aside the Master’s decision. The High Court may make such an order as it may think fit.”
Whether you six children should lodge a late claim against your mother’s estate, or an objection to the L&D account, is something you could get legal advice on too.
If you are unable to afford a lawyer, Legal Aid, which is a means-tested organisation, must assist you. These are their contact details:
Wishing you the best,
Athalie
Answered on July 9, 2023, 10:59 p.m.
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