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Cape Town - The easy part of preparing a will is deciding who should receive what and if they should receive it immediately upon your death or whether a trust should be created.
The difficult part follows - who can you trust to carry out your directions and who will act strictly in the best interests of your heirs?
This is according to David Knott of Private Client Trust, the fiduciary services division of Private Client Holdings, and a member of the Fiduciary Institute of South Africa, who says the fact is that the only one competent to deal with your estate after your death is the executor appointed by the Master of the High Court.
“Unless you have nominated an executor in terms of your will, the Master will convene a meeting for the election of an executor,” explains Knott. “This delays the administration of the estate and you will have no certainty as to who will be appointed and what his competence might be.”
Taking this into consideration, Knott says that one should, therefore, nominate an executor in your will to avoid this delay and uncertainty.
“Some people may nominate a spouse, a child or a close friend to be their executor. However, the nominated executor must be skilled in the law, duties and obligations pertaining to their role as executor, and be acceptable to the Master, otherwise the Master will not issue Letters of executorship to that person,” explains Knott.
“This again causes unnecessary delays in the administration, as the nominated executor, who may also be under some emotional distress, now needs to seek an agent. Often the wrong choice is made in haste. Once again, the testator has no control over who will become responsible for looking after their heirs.”
Knott recommends that, just as you would research what is available in the market before buying an item, so too should you investigate who operates in a fiduciary capacity as an executor and the market perceives that individual.
Where a trust might be created, the choice of a good trustee is often more important than that of an executor as the executor’s role is limited to a short period whereas the duties of a trustee can spread over many years and entails complex investment decisions managing substantial assets, in his opinion.
A trustee, apart from knowledge of the law, must also have access to intelligent investment advice.
Other areas where nominating the correct person to be executor is vital
“Where one has minor children, the nomination of a suitable guardian is also important. Young couples might think their respective parents would be best for their children, but the generation gap sometimes presents its own difficulties," says Knott.
“Difficult decisions may require intense thought, some homework and discussion but will ensure that your directions are carried out to the best interests of your loved ones during a very sad and stressful time.”
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