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. This situation often creates hardship for the surviving spouse, especially where the bank accounts were all in the name of the joint estate or in the name of the deceased.

Customary law has been dramatically affected by the decision in the Bhe and others vs. the Magistrate Khayelitsha and another case, which changed the way estates of deceased persons will be distributed. It also changed the way the Department of Justice and Constitutional Development will supervise the administration of deceased estates.

CHECK LIST – REPORTING A DECEASED ESTATE Master of the high court, DOCUMENTS TO BE COMPLETED and DOCUMENTS TO BRING
 Death Notice (J294)
 Certified copy: ID of Deceased 2)
 Next-of-kin Affidavit, if no Will (J192)
 2 Certified copy: Death Certificate 3)
 Affidavit of Care (Completed by Caregiver of minor child)
 Original Will & Codicils 4) Inventory (J243)
 Certified copy: Marriage Certificate or Divorce Order
 List of Creditors (Where estate is below R250 000.00)
 Certified copy: ID of Applicant & all parties nominating the Applicant
 Declaration that the estate was not reported to any other offices (Master or Magistrate’s Office) Not required for new matters
 Certified copy: Birth Certificates of all minors 7)
 Nominations (if no Will)
 Vouchers in respect of: (18(3) estates)

 Fixed Property Movables Bank Accounts:

 Undertaking & Acceptance of Master’s Direction (Section 18(3) Estates)
 (J155) 9) Acceptance of Trust as Executor (J190) (Where estate is above R 250 000.00)

A trust is relationship or arrangement between 2 parties known as the founder and the trustee wherein the founder grants an asset to the trustee for the benefit of a third party known as the beneficiary;

The Founder creates the trust by donating his assets to the trustees to be managed by the trustee. In practice a founder would instruct our office to prepare the necessary trust documents:
The trustee is appointed by the Founder and is responsible for managing the assets held in the trust. You can view trusteeship like an office or a job because the trustee have what we call a fiduciary obligation to act and manage the assets in the trust in interest of the beneficiaries.
The beneficiaries are the people who benefit from the assets that are held in trust. So these are the only people who are eligible to receive any benefit derived from the trust assets. In practice the founder will often make his children/relatives or spouse a beneficiary.

No, there is nothing stopping a founder from being all 3 persons in the same trust. So a founder can be a trustee and a beneficiary in the same trust. But in South Africa certain Trusts are required to appoint an independent trustee. This would be a person who is not related to any of the trustees or beneficiaries of the trust and who himself is not a beneficiary of the trust. Parker v Land and Agric Bank of SA.

A trust has to be registered at the Master of the High Court. To register a trust you therefore have to prepare certain documents these documents include affidavits by all the trustees, an affidavit from the auditor of the trust as well as the trust deed. A trust deed is very important because it grants the trustees the requisite powers to act on behalf of the trust. So the trustees powers are limited and noted in the trust deed.
Once the Master has processed all the documents the Master then issues the trustees with what’s called a letters of authority which serves as confirmation that the trustees can act on behalf of the trust.

No, there is a stark difference between a trust and a will. A will only comes into effect on the death of the testator whereas a trust can be fully operational during the life of the person. Because of this a person can include in their will that a trust should be registered and assets must vest in that trust.

I advise that every person should have a combination of a trust and a will. This is especially important to ensure that the loved ones you leave behind know your wishes and can comply with you will.

Any natural or juristic person like a company can be a trustee. But section 20 of the trust property control act provides circumstances where a person can be removed from such office by the Master. These include if the person is declared mentally ill or if the person’s estate is sequestrated.