When drafting or updating a Will, it is very important to know what exactly the functions of an Executor, Guardian or Trustee are and who you should entrust with these functions.
One of the first questions to consider when drafting a Will, is the appointment of an Executor. The duties and responsibilities of an Executor are set out in the Administration of Estates Act 66 of 1965. These include ensuring that the Estate is reported to the Master and performing administrative functions like placing the relevant estate advertisements, liaising with financial institutions and drafting the Liquidation and Distribution Account. If the Executor is a lay person, he or she normally appoints an attorney as agent to handle the administration of the estate on their behalf. He or she obviously should be a person that the testator trusts with personal matters and somebody capable of taking decisions in terms of the Will for the benefit of the heirs.
If a testamentary trust will come into existence after the death of the testator, suitable and capable Trustees should be nominated in the Will, to administer the trust. The establishment of a trust is especially important if the testator is survived by minor children. Trustee appointments usually go hand-in-hand with the appointment of a legal guardian. A trust deed forms part of the will and sets out the powers of the trustees and the purpose of the trust.
Where minors (persons under the age of 18) are involved, a legal guardian should be appointed in the Will, to care for children until they reach the age of majority. This should be a responsible person who can undertake the personal and financial duties involved in raising the children and providing a safe home for them.
The functions of an executor, trustee and guardian could be fulfilled by the same person(s) or different persons, depending on the personal circumstances.
Should you have queries about your existing Will or wish to draw up or amend a Will which correctly reflects your wishes, please contact our Estate and Trust Department for assistance.