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Can an English Grant of Probate be used in South Africa to administer a Deceased Estate?

Can an English Grant of Probate

Can an English Grant of Probate be used in South Africa to administer assets of a Deceased who worked in South Africa and acquired assets there prior to their demise? The process explained!

Introduction
We live in modern times where more and more people from abroad are traveling to South Africa and working in the country. While employed in South Africa, most invest in both moveable and/or immoveable property.

A question that seems to be often be asked by Solicitors in the UK, is whether or not their English Grant of Probate can be used in South Africa to administer a Deceased Estate and more specifically their assets.

The short answer is no. Though an English Grant of Probate is equivalent to the South African Letters of Authority or Executorship issued by the Master of the High Court, it cannot be used in the place thereof and the Executor will need to apply for the South African Letters of Authority or Executorship.

In South Africa, all Deceased Estates are administered in terms of The Administration of Estates Act, 66 of 1965 (hereinafter referred to as “the Act”). The Master of the High Court ensures that the Act is complied with at all times.

The difference between Letters of Authority and Letters of Executorship:
If the value of a Deceased Estate exceeds R250 000.00, Letters of Executorship must be issued by the Master of the High Court and the full process prescribed by the Act must be followed.

However, if the value of the estate is less than R250 000.00, the Master may dispense with Letters of Executorship, and issue Letters of Authority in terms of Section 18(3) of the Act.

Magistrates offices in South Africa also are service points for the Master of the High Court and have jurisdiction in the following instances, namely:
• The Deceased did not leave a valid will (died intestate) and;
• The value of the estate (or the best estimate value thereof) is not more than R100 000.00; and
• The estate is not insolvent (liabilities exceed the assets), and
• All the Beneficiaries are Majors or any one or more of the Beneficiaries is a Minor and is assisted by his or her Legal Guardian and the cash assets in the estate is worth R20 000.00 or less.

Letters of Authority entitles the nominated Representative to administer the estate without following the full procedure set out in the Act.

How to apply for Letters of Authority/Executorship in South Africa:
In terms of Section 7 of the Act, when a person with assets dies, his/ her Estate must be reported to and be registered at the office of the Master of the High Court within 14 (fourteen) days of the date of death, by lodging a Death Notice among all other reporting documents.

The purpose is to ensure an orderly winding up of the financial affairs of the Deceased, and the protection of the financial interest of the heirs. This does not always happen within the time stipulated.

What Reporting Documents need to be submitted to the Master of the High Court?
The following reporting documents need to be submitted to the Master of the High Court by hand or registered and can also be found and downloaded at http://www.justice.gov.za/master/m_deseased/deceased_how.html

1. where the value of the estate exceeds R250 000.00:
- Completed Death Notice form - J294;
- Original or certified copy of the Death Certificate;
- Original or certified copy of Marriage Certificate (if applicable);
- All original Wills and Codicils or documents purporting to be such (if any);
- Completed Next-of-Kin Affidavit - J192 (if the deceased did not leave a valid will);
- A Declaration of Marriage by the Surviving Spouse indicating how the deceased was married;
- Completed Inventory form - J243, showing all the assets of the deceased;
- Nominations by the heirs for the appointment of an Executor in the case of an intestate estate or where no executor has been nominated in the will, or the nominated Executor declines the appointment;
- Completed Acceptance of Trust as Executor forms - J190 in duplicate by the person(s) nominated as executor(s);
- Undertaking and bond of security - J262 (unless the nominated executor has been exempted from furnishing security in the will, or is the parent, spouse or child of the deceased);
- Certified copy of the ID of the person to be appointed as Executor;

2. Where the value of the estate is less than R250 000.00:
- Completed Death Notice form - J294;
- Original or certified copy of the Death Certificate;
- Original or certified copy of Marriage Certificate/s (if applicable);
- All original Wills and Codicils or documents purporting to be such (if any);
- Completed Next-of-Kin Affidavit - J192 (if the deceased did not leave a valid will);
- Completed Inventory (form - J243) showing all the assets of the deceased;
- A Declaration of Marriage by the Surviving Spouse indicating how the deceased was married;
- List of creditors of deceased (if applicable);
- Nominations by the heirs for the appointment of a Master's Representative in the case of an intestate estate or where no Executor has been nominated in the will, or the nominated Executor declines the appointment;
- Declaration confirming that the estate has not already been reported to another Master's office or Service Point of the Master;
- Acceptance of Master’s Directions - J155, completed and signed by the person as nominated above;
- Certified copy of the ID of the person to be appointed as Master’s representative.

The above-mentioned reporting documents must be posted to, or handed in at the Master's Office. Faxed reporting documents are not acceptable.

Conclusion
As explained above, the English Grant of Probate cannot be used in South Africa to administer a Deceased Estate or assets acquired in South Africa prior to their demise and the Executor will need to apply to the Master of the High Court for the South African Letters of Authority or Executorship. The English Grant of Probate may however be enclosed to the Master for ease of reference.

SchoemanLaw can assist with the administration of all Deceased Estates.  

© Shannon Vengadajellum - Schoemanlaw Inc. - 2018

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