Why do I have to appoint an attorney?
Regulation 910 published in terms of the Attorneys Admission Act of 1934 stipulates in Regulation 2 thereof that: -
No person other than an attorney, notary or conveyancer as defined in section 1 of the Attorneys, Notaries and Conveyancers Admission Act, 1934, may liquidate or distribute a deceased estate.
Regulation 3 exempts the following persons permanently from the provisions of regulation 2: -
- Any board of executors as defined.
- Any trust company as defined.
- Any public accountant as defined in legislation regulating accountants and auditors.
- Any person licensed as a broker or agent under the Licenses Act, 1962, and carrying on a business predominantly consisting in the liquidation or distribution of deceased estates.
Regulation 4 provides that the classes of persons or institutions permanently exempt from the prohibition in Regulation 2 are:
- Any natural person nominated as executor in a will accepted by the Master, in so far as this person is personally liquidating or distributing the estate.
- The surviving spouse of or any person related to a deceased person by consanguinity or affinity up to the second degree, in so far as this person is personally liquidating or distributing the estate.
- Banking institutions under certain conditions.
- Any person who is in the full-time service of any other person who is lawfully liquidating and distributing the estate of a deceased person, in so far as he is assisting such other person with or is acting on his or her behalf in any matter relating to the liquidation and distribution of the estate.
- Any person in the full-time service of a trade union under certain conditions.
- Any person liquidating or distributing an estate on the instructions of an attorney, notary, conveyancer, or law agent.
- Any person liquidating or distributing an estate under the direction of the Master in terms of section 18(3)of the Administration of Estates Act, 1965.
The Attorneys Admission Act of 1934 was repealed by the Legal Practice Act of 2014. This raised the question if these regulations were still in force. The fact that these regulations were still in force was confirmed in the case of Koch Weiland N.O. and Another [2022] ZAWCHC.
What is important is that nobody, but the persons set out above may be involved in liquidating and distributing an estate. Insofar as the nominated and appointed executor does not have the ability or skill set to attend to the liquidation and distribution of an estate, he or she may only appoint people or institutions as set in the regulations to assist them with doing this and nobody else. The court explained in paragraph 33 of the judgment the following in respect: –
“One of the reasons for their promulgation must have been to protect the public and to ensure that the administration of deceased estates was done in an orderly and lawful manner. Notably, the regulations do not say that no person, save as provided for in the regulations, shall be appointed as executor. They specifically say that no such person “shall liquidate or distribute” a deceased estate. This (sensibly so, given the purpose of the regulations) refers to the acts involved in liquidating and distributing an estate, rather than to where the responsibility lies for those actions”.
The aforesaid means that if you are appointed as an executor in terms of a will or because of being a spouse of the deceased or being related up to the second degree of consanguinity or affinity, then you may personally attend to the liquidation and distribution of the estate of the deceased. If you are however not able or willing to do this yourself then you may only employ professionals such as attorneys or accountants alternatively institutions as set out in regulation 3 & 4 to assist you in doing so.
The administration of a deceased estate is a complex area of the law that requires a good understanding of many different pieces of legislation, for instance the Administration of Estates Act, the Estate Duty Act, The Wills Act, the Intestate Succession Act, and many others. A lot of tax issues are also triggered by a person’s death and the executor needs to properly file all tax returns for the deceased dealing with these taxes. Apart from the aforesaid engaging with the office of the Master of the High Court may from a practical point of view also be a very challenging experience for anybody attempting this themselves for the first time. As a consequence, the Master of the Court shall in many instances insist that a nominated executor appoint an attorney, especially where it may appear to the Master that the nominated executor lack the skills or knowledge to duly attend to the liquidation and distribution of an estate.