Should you discourage clients from nominating a foreign Executor in their Wills? Many South Africans have family members living overseas who would normally be nominated in a Will as Executor or co-Executor.
What does the law say?
Section 14 of the Administration of Estates Act stipulates that any person nominated in a Will lodged with the Master of the High Court and accepted by the Master shall be appointed as the Executor if they are not incapacitated and the nominee has complied with the Master’s requirements. Accordingly, the nominated Executor can be resident or non-resident and clients are within their rights nominating a non-resident Executor.
But wait – what are the practical implications?
It is highly likely that despite the Will exempting the Executor from filing security (which is often the case) the Master will override this provision and insist upon security where the nominee is non-resident. The Master has the discretion to override the Testator’s wishes in this regard and has confirmed that he will always call for security where the Executor is non-resident despite the Testator specifically exempting the Executor from filing security.
So why not simply obtain security?
Firstly, it is highly unlikely that a local underwriter will insure this risk precisely because the Executor is non-resident, and secondly, if you found an insurer willing to provide security, the premium is likely to be prohibitively expensive.
Persuade your client not only to appoint a resident Executor, but someone who has the necessary experience and qualifications to perform this onerous task.