Appointment of an executor

By Miriam Tose Majome

WE continue from last week. An estate is a person’s assets and liabilities and it matters little how small or large their estate is for administration purposes.

When people die, their property and debts continue to exist and they will need to be managed and protected by other people, who are still living.

Every culture has its own way of administering deceased estates and last week we looked at the Shona system, which is most likely typical of other similar African traditional societies.

While parallel or traditional methods of appointing heirs by consent within families is common, such administration of deceased estates is more prone to disputes and enduring family feuds. No system of administering deceased estates is immune to disputes, however.

Families and creditors will invariably wrangle and fight over assets in deceased estates and such fights are always brutal and emotionally-laden.

Despite whatever domestic arrangements people may make, it is a legal requirement to register and administer all deceased estates in accordance with the Administration of Deceased Estates Act.

The law

The Administration of Estates Act (Chapter 6) governs deceased estates.

The Act also governs the estates of minors, mentally disordered or defective persons and persons absent from the country. The Act also provides for the control of moneys belonging to missing persons.

It sets the rules and guidelines for running the affairs of people who are unable to handle their own affairs or are limited for the stated reasons.

The Act aims at protecting the estates of people who are unable or unavailable to protect and administer their own estates.

Formal legal administration

The Office of the Master of the High Court of Zimbabwe encompasses the Deputy Master, Assistant Master and further assistants including magistrates. So it is possible to register deceased estates anywhere in Zimbabwe where Magistrates’ Courts are found.

It is a legal requirement to give a formal death notice to the Master, Assistant Master or magistrate within 14 days if the person dies and leaves property or a will.

Failure to give such notice is a criminal offence. So, it is compulsory for all deceased estates to be registered and properly administered and approved by the Master’s Office.

This is to avoid abuse of a deceased person’s property and to make sure all their property is accounted for before it is distributed or lodged into a Trust.

If the deceased person left a will, it has to be deposited with the Master upon notification of the death. Wills will be discussed in more detail another week.

Listing assets and debts

Upon notification of the death of a person, all their assets and belongings have to be identified and listed on forms provided by the Master, meaning all their movable and immovable property, household and personal effects.

Ordinarily this is done by very close relatives and if the person was married by spouses. It is a criminal offence for a spouse in a jointly-owned estate to falsify or fail to draw up a correct inventory of all the belongings of the deceased.

If there is wilful concealment of assets from the inventory, there will be serious penalties if it comes to light.

Appointment of executor by a will

There is need to appoint a person to manage the estate of the deceased person. An executor is the person appointed to manage and distribute the property of the dead person.

An executor can be appointed in terms of a will or by the consent of the living family members or appointment by
the Master if consensus cannot be reached by family members.

No matter how efficient or private a person may be, their affairs will inevitably be handled by someone else when they die or if they become incapable of managing their own affairs.

One may select the person whom they want to handle their affairs after they die. They can appoint the executor through a will and specify exactly how they wish them to handle their affairs, debts and assets.

The Master gives a document called Letters of Administration and it gives the executor the authority to act on behalf of the deceased person and put themselves in their shoes.

An executor is expected to perform their duties with care and competence. The role of executor can be jointly shared as the Master deems fit.

Appointment of executor by the Master

If the deceased did not write a will, their estate will be handled in terms of intestate succession. It may also happen that the person appointed in terms of the will may refuse the appointment, so the Master will have to appoint another one.

An executor of a deceased estate cannot be living outside Zimbabwe, but it is possible for them to appoint another person who lives in the country to act for them by the power of attorney.

An executor is appointed at a meeting of close relatives called an edict meeting. The relatives can agree among themselves and appoint one among them to be the executor.

If they cannot agree, the Master will appoint an executor from among them if possible or he will appoint an independent neutral party.

We will look at the duties of an executor next week.