This week two situations are explored relating to the executorship of an estate.
In the first scenario a reader wants to know how to go about settling his uncle’s estate after having received a vague explanation of the process.
He says he has recently been appointed executor of the estate. His uncle passed away in 1989 and the reader’s mother initially held the position of executrix, but she died before winding up the estate.
See the reader’s question here.
The reader has made certain inquiries at the Master’s office in connection with the winding-up process due to no information being provided to him at the time of his appointment.
In particular, it seems that the process of transferring the property in the estate to the heirs was not explained and he is not sure how to proceed.
Some confusion may exist as to the role of the executor.
The executor is appointed, whether nominated in the will of the deceased or otherwise, with the duty to administer and wind up the estate of the deceased.
The executor is not necessarily an heir to any part of the estate and has no right to use the property as his own.
Taking an inventory and advertising for creditors provide the executor with a point of departure as to the assets and liabilities of the estate.
Payment of the debts of the estate is typically effected by the executor using the collected moneys of the estate.
If sufficient funds are not available the executor should look to liquidate assets of the estate to ensure sufficient liquidity for payment.
Movables are sold first, with specifically bequeathed assets usually being liquidated last to try to adhere to the deceased’s will as closely as possible.
If the movables realise insufficient funds, the executor should consider selling fixed property.
If heirs would prefer to avoid the sale of any assets, whether movable or fixed, they could consider providing funds to the estate to settle debts and other administration expenses.
After settling the debts, the executor should administer the balance of the estate, which includes the transferring of the fixed property to the nominated or residual (not specified) heirs.
This entails registering the fixed property in the name of the heirs and in such ratios as may be applicable if there is more than one.
The reader will have to approach a conveyancing attorney for assistance to see to the transfer.
In the second situation, a reader wants to know how to change the title deed of the house – in which her stepfather lived with her mom – to reflect her name.
Her mother passed away recently and was married in community of property. A family dispute resulted in her and her sister having to vacate the family home in which her biological father and mom used to live.
The stepfather would like to “give” the house, in which he still lives, to the reader.
In this instance the process may be a little more complicated.
This is due to the mother having been married in community of property and that the house in question may fall under the communal estate.
The half share belonging to the mother may be transferable under her will, but the half share belonging to her husband would require a basis for transfer, usually sale or donation.
The reader should take advice on the best method applicable in the circumstances as a financial obligation may arise from both scenarios.
The executor of the mother’s estate could be involved in this process to ensure the transfer of both half shares takes place simultaneously.
The same conveyancing attorney could attend to the transfer to avoid duplication of costs.
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