Do I need an attorney to wind up an estate?

No, you do not need an attorney to wind up an estate. The Administration of Estates Act 66 of 1965 allows any competent adult to be nominated as executor, and the Master of the High Court appoints family members as executors every day. Many people wind up a simple estate themselves, dealing directly with the Master's office. But two things push people towards professional help. The Master may require the executor to appoint an agent for a larger or more complicated estate, and the work itself, with its forms, advertisements, accounts and deadlines, takes time and care. The honest answer is that whether you need an attorney depends on the size and shape of the estate, not on the law.

Who can be the executor

The will normally names an executor. If it does not, or there is no will, the family nominates someone and the Master appoints them. Anyone of full legal capacity can act. There is no requirement that the executor be a lawyer, an accountant or a bank.

Before issuing letters of executorship, the Master may require the executor to give security, a guarantee that the estate will be properly administered, usually in the form of a bond of security from an insurer. Security is not required where the will exempts the executor, or where the executor is the deceased's parent, spouse or child. If you are the surviving spouse or an adult child and there is no will, you can expect to be exempted. A friend or a more distant relative may have to arrange security, and the premium is a cost of the estate.

When the Master will insist on an agent

The Master can appoint a lay executor but also has the power to require that executor to appoint an agent to do the work. Agents are usually attorneys, accountants, trust companies or bank estate departments. In practice the Master's offices tend to require an agent where the estate is above a certain size, where there is immovable property to be transferred, where there is a business, foreign assets or a trust, or where the executor is a person the Master has reason to think cannot manage the process. Small estates and estates consisting of a bank balance, a car and household goods are routinely left to the family.

The threshold and the practice vary between Master's offices and change over time, so ask the office you are dealing with before deciding.

The agent's fee comes out of the executor's fee, not on top of it, unless the executor agrees to pay more. The regulated maximum executor's fee is a percentage of the gross value of the estate plus a percentage of income earned after death, and VAT where the agent is registered. Read what an executor does and how much they charge and use our executor fee and estate duty calculator for current figures.

What winding up involves, step by step

Whether you do it yourself or through an agent, the estate follows the same route.

1. Report the death to the Master within 14 days, with the death notice, the original will, an inventory of assets, and the nomination and acceptance forms. Read how to report a deceased estate to the Master.
2. Receive letters of executorship, or for a small estate, letters of authority under section 18(3).
3. Advertise the estate in the Government Gazette and a local newspaper, calling on creditors to lodge claims within a set period.
4. Open an estate bank account and gather the assets: close accounts, claim policies, obtain valuations, collect debts.
5. Deal with SARS. Register the estate, file the deceased's final income tax return, and later the estate duty return. Read how estate duty is calculated.
6. Pay debts and, if necessary, sell assets to do so.
7. Draw the liquidation and distribution account, showing every asset, every debt, every cost and who gets what. Lodge it with the Master within the period the Act allows, or ask for an extension.
8. Advertise the account as lying for inspection at the Master's office and the local magistrate's office, and deal with any objections.
9. Distribute. Pay the heirs, transfer property through a conveyancer, and file proof with the Master.
10. Obtain the Master's filing slip confirming the estate is finalised.

Some steps need a professional regardless of who the executor is. Transfer of immovable property must be done by a conveyancing attorney. Tax returns for an estate with a business may need an accountant. A lay executor can appoint these people for those tasks only, and their fees are estate expenses.

A worked example: two estates

The figures are illustrative.

Estate one. Refilwe's mother dies leaving a bank account of R85 000, a car worth R60 000, furniture and a funeral policy. There is no will and no property. Refilwe is the only child. She reports the estate to the Master with the required forms. Because the estate is small, the Master issues letters of authority under section 18(3) to Refilwe, who closes the account, transfers the car and pays the outstanding accounts herself. No attorney, no executor's fee, no advertisements. Her costs are certified copies and transport, about R400. It takes about three months.

Estate two. Pieter's father dies leaving a house worth R1 600 000 with a R300 000 bond, R400 000 in investments, a car and a small share portfolio. The will names Pieter as executor and exempts him from security. When Pieter lodges the reporting documents, the Master's office tells him that, given the value and the property, he must appoint an agent. He appoints an attorney. The attorney charges the regulated executor's fee, agreed as a percentage of the gross estate, which comes to roughly R80 000 plus VAT, and a separate conveyancing fee to transfer the house to Pieter's mother. The attorney does the advertisements, the SARS returns and the account. The estate is finalised in about eleven months.

Had Pieter negotiated the fee before signing the agent's power of attorney, he might have secured a reduction, since many firms discount for uncomplicated estates. Once signed, the fee is hard to revisit.

What to do this week

1. Find the will and check whether it names an executor and exempts security.
2. Phone or visit the Master's office for the district where the deceased lived and ask which route the estate will follow and whether an agent will be required.
3. Draw up a rough inventory of assets and debts with values. This decides everything else.
4. Get two or three fee quotes from attorneys or trust companies if an agent is likely. Ask for the percentage, whether VAT applies, and what the conveyancing will cost separately. See what wills and estates work costs.
5. Do not pay anyone or sell anything until letters are issued. Acting without authority can make you personally liable.

Documents to gather

The death certificate, the deceased's ID, the original will and any codicils, the marriage certificate and antenuptial contract, the names and ID copies of the surviving spouse and children, title deeds and bond statements, bank and investment statements at date of death, policy documents, vehicle registration papers, the last income tax return, the funeral account, and a list of known creditors with balances.

Realistic timeline

A small estate under section 18(3) can be finished in two to four months. A simple estate with a will, no property and cooperative heirs takes about six to nine months. An estate with a house to transfer, SARS returns to finalise and a creditors' period to observe typically takes nine to eighteen months. Disputes, missing heirs, foreign assets and a business push it well beyond that. Read how long it takes to wind up a deceased estate.

Common mistakes and what they cost

• Signing an agent's power of attorney without negotiating. The full regulated fee on a R2 million estate is a five-figure sum. A discount asked for at the start is often granted. Asked for later, it is refused.
• Paying heirs before creditors and SARS. The executor is personally liable for the shortfall.
• Missing the reporting deadline and the account deadline. The Master can fine an executor and, in serious cases, remove them.
• Using the estate's money for family expenses. Even with good intentions, it is a breach of the executor's duties and the Master can demand repayment.
• Doing it yourself when the estate has a business or foreign assets. The savings on fees are usually lost in delays and tax penalties.

If you cannot afford an attorney

The Master's office deals directly with the public. Its staff will tell you which forms to complete, whether the estate qualifies for section 18(3) letters of authority, and what to do next, at no charge. For a small estate that is usually all you need. For a larger estate where the Master requires an agent, the agent's fee is paid from the estate at the end, not by you up front, so lack of cash is not usually a barrier. Legal Aid South Africa on 0800 110 110 applies a means test and may assist with some estate matters. University law clinics help with estate administration for people who qualify. See our legal aid page. The Master's fees, the small estate threshold and related amounts change from time to time, so check current figures on our executor fee and estate duty calculator rather than relying on figures you have heard.

Frequently asked questions

People ask whether they can be executor if they live overseas. The Master is reluctant to appoint an executor who lives outside South Africa and will usually require a local agent and security. It is often simpler to nominate a resident family member.

People ask whether the executor is paid. An executor is entitled to the regulated fee, but a family member acting as executor commonly waives it, and the will may fix a different fee or say none is payable.

People ask whether they can change an agent who is slow. Yes, but the agent may claim fees for work done to date. Complain in writing to the agent first, then to the Master, who can direct the executor.

People ask what happens if heirs disagree about who should be executor. The Master decides, and generally prefers the surviving spouse or a majority of heirs. A contested appointment delays the estate, so agree if you can.