Written by Alessia Ryan
Regulation 910 of the Attorneys Act stipulates that, in the event of deceased estates, only an attorney, trust company or auditor can be appointed as executor. In the event that an individual is nominated as an executor, such as a surviving spouse, the Master of the High Court will require the appointment of an agent, in compliance with Regulation 910. Although this Regulation seems simple and straight forward, it has created a headache for the Masters Office and agents alike.
Delegates to the Fiduciary Institute of Southern Africa conference heard that the Master’s Office intends on soon announcing a policy change regarding this Regulation. The Master’s Office hopes that Regulation 910 is recalled in its totality, meaning, individuals will be able to administer deceased estates without the use of agents.
The problem with Regulation 910 lies with the fact that the Master may demand security from the executor to protect the beneficiaries and creditors should something go wrong. The Master’s Office may insist on this security, despite the will advising that the executor is exempt from having to provide such security. However, the Master’s Office have failed to use their discretion and have demanded security in situations where such security is not appropriate.
Practical problems which the Master’s Office faces are that when an individual is appointed as an executor, and an agent is assisting them, no security can be requested. Therefore, any recourse the Master may have is against the executor and not the agent, whom is (at most times) responsible for the delay or non-compliance.
The proposed policy change is that every nominated executor will go through the Master’s Own Verification Technology to be vetted. Where a person cannot obtain security required by the Master’s Office, they will be referred to an agent who is able to provide such security. In the event where an agent has been appointed and has provided security, then the agent will be appointed as executor, to allow the Master’s office to have a right of recourse against the agent.
This policy change leads to the question: will the Master’s Office be equipped to handle such processes? And will this new policy change speed up the process to obtain letters of Executorship or just create more problems?