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My father died 02/07/2007, he didnt do a will but wanted my…

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Answer 1

Answered in 15 minutes by:

5/6/2010

Lawyer: WCLawyer, Attorney replied 13 years ago

WCLawyer, Attorney

Category: South Africa Law

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The 3,5% is an executors fee that is to be paid by the estate, not by you.

The executor will decide how any cash shortfall in the estate is to be dealt with and it seems from your information that at least one of the vehicles will have to be sold off.

Answer 2

Lawyer: WCLawyer, Attorney replied 13 years ago

The executor is whomever the Master appoints as an executor to wind up the estate of the deceased. In terms of Intestate Law (where there is no will) your mother will get half of the property if they were married in community of property and the other half will be divided between you and your mother as per the act. You could, however, repudiate your inheritance in favour of your mother.

This is going to cost money and if you don't want to sell anything out of the estate, then you will have to pay the fees. The execution costs is, however, a liability against the estate. The estate being the deceased estate of your late father meaning everything he owned prior to his death. So, the executor will have to be paid from your father's possessions (estate). If there is no cash, then some of the moveable properties (such as the car) must be sold.

Alternatively, you can apply to the Master to be appointed as executor and do it yourself. The Master might, however, require that an attorney be appointed to assist you, which will put you back on square one.

Answer 3

Lawyer: WCLawyer, Attorney replied 13 years ago

No. What I am saying is that you may apply to the Master to be appointed as the executor. The Master then may appoint you. The Master may then decide that you need an attorney to assist you.

This is a pretty small estate and easy to execute, so I don't think that the Master will make that decision. However, even if you do not have to pay the executors fees, there is still other expenses that will have to be paid, like conveyancers fees for the transfer of the immovable property. Something will have to be sold to get cash to pay these expenses or it is going to have to come out of somebody else pocket. There is unfortunately no way around it and why estate planning is so important while you are still alive.

For an estate this size, I cannot see expenses exceeding R 20 000 - 00 and if it does, not by much. If you are forced to or appoint an executor, then it increases substantially.

Note that executors fees can be agreed upon as well. It does not have to be 3,5%.

Answer 4

Lawyer: WCLawyer, Attorney replied 13 years ago

I have sympathy with your mother's cash flow problems regarding the estate, but the marital property regime will not change the procedure of administrating an estate.

In community of property basically means that your mother will get half of the common property before the other half is divided according the the Intestate Succession Act.

With all due respect to your late father, he left your mother in a predicament regarding the estate because he failed to ensure that there are cash available in the estate once he dies. There is only on of two ways in which this can be resolved: The assets of the estate must be sold off or you or your mother must contribute to the cash shortfall.

I realize that this answer frustrates you, but it is, unfortunately, the law.

Answer 5

Lawyer: WCLawyer, Attorney replied 13 years ago

No. The other half, in your case, will be distributed as follows equally between your mother and you. If her half is less than R 125 000, then she will get R 125 000 and you will get the rest.

Please note that this is not your father's half of the common estate we are talking about. You cousin cannot inherit.

Answer 6

Lawyer: WCLawyer, Attorney replied 13 years ago

As far as I know, yes, however, I do not do the charge from my side. It is just answer who does that.

My father died 02/07/2007, he didnt do a will but wanted my…

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