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Shaie Zindel
Shaie Zindel, Attorney
Category: South Africa Law
Satisfied Customers: 1208
Experience:  All areas of commercial and contract Law - specialist in property advice.
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Married i.c.o.p. Re freezing of accounts. I have not been able

Customer Question

Married i.c.o.p. Re freezing of accounts. I have not been able to identify the legislation (Act) that requires this. The Administration of Estates Act is mute on this point! Can you point me to the right Act?

Kind regards,

D. Goldbach
Submitted: 11 months ago.
Category: South Africa Law
Expert:  Shaie Zindel replied 11 months ago.

Shaie Zindel :

Hi Mr or Mrs Goldbach - let me try to help please - can you explain why you want to freeze or unfreeze an account - I'm assuming that one of the parties to a marriage in community of property has passed away and perhaps the Bank has frozen the Account? This should only be so for as long as it takes for an executor or executrix to be appointed and to receive letters of executorship. At this point the Executor/trix will open up an estate account and the surviving spouse can claim maintenance or a portion of the credit funds being his or her 50%. Please let me know if this helps and let me have any further info you can in order to assist you further. Regards Shaie

Customer :

Good Day,

Customer :

Good Day, I'm sorry but your answer does not help at all, I am familiar with what you explain. What I am trying to establish is the legal basis for the freezinAs I've said of accounts, i.e. which Act mandates such account freezing? As I've said, the Administration of Estates Act says nothing about this matter. Do you want to do a search or shall we drop the matter?

Customer :

Good Day Shaie, I am familiar with the procedure you have outlined. What I want to know is what is the legal basis for the freezing of accounts, i.e. which Act mandates it? Kind regards, XXXXX

Expert:  Shaie Zindel replied 11 months ago.
Hi Again - to the best of my knowledge the closure of an account is not legislated at all. It is a function of the law of contract. When a party to a contract passes away then the contract terminates ex lege - The result is that there is no longer any contract and accordingly as in this case, the Bank no longer has a customer and will accordingly close the account. Think from a practical point of view - Mr X dies and has R1m in his savings account - if the account were transacted on, his kids who are say the named beneficiaries would have a claim against the bank for the withdrawn funds on the basis that they allowed a non customer to transact on an account in respect of which the contracting party is no longer alive. Does this answer your question?
Customer: replied 11 months ago.

Hi, Shaie,


Your reply does not really satisfy me. You say " to the best of my knowledge the closure of an account is not legislated". Why then does everyone involved in estate administration insist that accounts must be frozen? I can understand that a bank may want to do this for the reason outlined by you, and for that to happen they must of course first have received a death notice. Are you sure there is not somewhere in the welter of South African legislation dealing with deceased estates a hidden requirement for the freezing, not closing of accounts? The closing will happen once the Estate Late account has received all funds from the frozen accounts. I really need to get to the bottom of this!


 


Best regards,


 


D. Goldbach

Expert:  Shaie Zindel replied 11 months ago.
Hmm - its an interesting issue - the Executor has a legal and fiduciary obligation to collect and preserve the assets of the Estate. For this purpose and in order not to prefer one creditor over another I think it must have become an accepted practice that accounts get frozen and then closed. I will have another look at the Act and revert if my view changes in any way.
Shaie Zindel, Attorney
Category: South Africa Law
Satisfied Customers: 1208
Experience: All areas of commercial and contract Law - specialist in property advice.
Shaie Zindel and 2 other South Africa Law Specialists are ready to help you
Expert:  Shaie Zindel replied 11 months ago.
Administration of Estates Act Section 11(1)(b) - the obligation to keep and account for property of the Deceased. This is as close a reference as I can find. I'm hoping that you are satisfied with my service now and look forward to your positive rating. Regards Shaie
Expert:  Shaie Zindel replied 11 months ago.
Are we good?
Customer: replied 11 months ago.

'Accepted practice' - definitely but it does not seems to have any direct legal basis. OK. Let's leave it at that, even if my question has not found any real answer. But thanks for your efforts!


 


Kind regards,


 


D. Goldbach

Expert:  Shaie Zindel replied 11 months ago.
I'm always willing to help - just bear in mind that a lot of the law doesn't resolve matters with a simple yes or no answer - often we have to take complicated legal issues and form a view based on an interpretation of a Statute, a Precedent or even the Common Law.
Expert:  Shaie Zindel replied 11 months ago.
Thanks for the positive rating and good luck!

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