Answer to a question from a reader

What can I do if my sibling has a parent's will and they won't allow the rest of the siblings to read the will?

The short answer

No person is allowed to liquidate or distribute the estate of a deceased person without a letter of authority.

The whole question

Dear Athalie

One of my siblings has got my parent's will and refuses to allow the other siblings to read it or have a copy of it. What can we do?

The long answer

I presume that the will is your mother or father’s will and that they are deceased. If this is so, was the sibling who has got the will made the executor of the deceased estate by the Master of the High Court in accordance with the will of your deceased mother or father? Or are they the person with the letter of authority to deal with the deceased estate?

The Justice Department says that at death, the estate of the deceased person is frozen, and no-one may withdraw funds from the deceased’s bank accounts or deal with any of the estate assets without the necessary permission from the Master of the High Court.  If the deceased was married in community of property, the joint estate is frozen.

A deceased estate comes into existence when a person dies leaving property or a will. This estate must then be administered and distributed in terms of the deceased's will, or if the will is not valid, in terms of the Intestate Succession Act, 81 of 1987. 

There is a whole process that must be followed when someone dies, in terms of the Administration of Estates Act, 1965.

First, the death must be reported within 14 days to the Master of the High Court in the district where the deceased person has been living. Any will must be delivered to the Master. 

Mohammed Moolla, a magistrate in Wynberg, explains the process in a 2022 article, which I summarise below:  

The following reporting documents will be required:

  • Death Notice form – J294;

  • The original or certified copy of the death certificate;

  • The original or certified copy of marriage certificate, or acceptable proof of marriage as accepted by the Master, or proof of registration of a customary marriage, or proof of a religious marriage (Muslim/Hindu) with a declaration confirming the existence of marriage;

  • All original wills;

  • Completed next of kin affidavit (J192 form);

  • Completed inventory (J243 form) showing all assets of the deceased;

  • 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 executor declines the appointment;

  • Acceptance of Master’s Direction (J155 form) or acceptance of trust as executor in duplicate completed by person accepting appointment.

No person is allowed to liquidate or distribute the estate of a deceased person without a letter of executorship. If the estate exceeds R250,000, letters of executorship must be issued and the full process prescribed by the Administration of Estates Act must be followed. But if the value of the estate is less than R250,000, the Master of the High Court may issue a letter of authority instead, in terms of section 18(3) of the Administration of Estates Act.

The notice to lodge claims:

  • Once the letter of executorship has been issued, the executor must put a notice for debtors and creditors in the Government Gazette and in one or more of the newspapers in the area in which the deceased person had lived for at least a year before they died. The notice calls on everybody who has a claim against the estate to lodge their claims not less than 30 days and not more than 3 months after the notice is published in the Government Gazette. Those who owe debts to the estate must pay them within the same period.

Liquidation and distribution account (L&D)

  • After the last day of the notice period and within six months of the letter of executorship being issued, the executor must give the Master an account of how the estate must be liquidated and distributed, supported by vouchers.

Inspection of the accounts

  • Once the Master has examined the account and issued a memorandum about any queries, the executor must again put a notice in the Government Gazette and one or more local newspapers, this time advertising that the Liquidation and distribution Account (the L&D account) will lie open at the Master’s office for anyone who is interested in the estate to read.

Objections to the accounts

  • Anyone interested in the estate can lodge an objection to the L&D account and must give their reasons for objecting. The Master will deliver these objections to the executor, who must reply to the Master regarding these objections within 14 days of receiving them. 

  • The Master must consider the objection and the comments of the executor and if the Master finds the objection is well-founded or the L&D account is incorrect, he can instruct the executor to amend the account.

  • Anyone who objects to the Master’s decision can apply within 30 days to the High Court for a court order to set the Master’s decision aside. 

Distribution of estate

  • When that has all been done, the executor must immediately pay the creditors and distribute the estate amongst the heirs, according to the L&D account. The executor must give the Master all the receipts from creditors and heirs. 

  • Once the letter of executorship has been issued, the executor takes full control of all the assets that form part of the estate. The duties of the executor can include selling the property, settling debts and paying out the balance to the heirs.

Mohammed Moolla concludes by saying that the executor stands in the shoes of the deceased to carry out the will.  

So, you can appreciate that there is a long process to be followed by an executor or the person with the letter of authority, before it is clear what the heirs are owed, after all the debts have been paid. If your mother or father chose one sibling to be the executor, then the right and duty to administer the estate is that sibling’s responsibility. But equally, the executor or the person with the letter of authority cannot use their position to benefit personally from the estate.

Of course, it is always better to be open about a will. Often an executor will summon the heirs after the funeral to read the will, but it is not laid down in law when this should be done. It may be that it is not yet clear what the heirs will inherit because the L&D account has not yet been completed.

If you feel that your sibling is withholding the will in order to do things that may not be above board or legal, you can contact the Master’s office for help.

These are the contact details:

Master of the High Court helpline:
Tel: 012 315 1207

You can also approach Legal Aid (which is a means-tested organisation) that must assist people who cannot afford a lawyer.

These are the Legal Aid contact details:

  • Legal Aid Advice Line (Toll-free): 0800 110 110

  • Please-Call-Me number: 079 835 7179

Wishing you the best,

Answered on Feb. 9, 2023, 9:36 a.m.

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