WHY A JOINT WILL MAKES SENSE

Is there any advantage to having a joint will if you’re married in community of property? My wife and I operate our own bank accounts, and our bankers have assured us that when one of us dies the account of the surviving spouse will not be frozen. However, we now understand that, in terms of the rules governing marriages in community of property, neither bank account can be operated until the Master of the High Court accepts the executor of the will. If this is the case, what can the surviving spouse do to obtain funds for day-to-day expenses, including paying accounts, from the date of death to the acceptance of the executor?

Name withheld

Willie Fourie, the head of Estate and Trust Services at PSG Wealth, responds: If you are married in community of property, it makes sense to have a joint will, because each party to the marriage owns only a half undivided share in the joint estate. There is no uniform treatment among the banks in this scenario. The banks cannot close accounts until they receive the letters of executorship and an instruction from the executor to close the account of the deceased.

The surviving spouse can continue to use the separate bank account until a bank account is opened for the deceased estate. The executor is also empowered to use any funds under his or her control for the maintenance of a spouse and children.

It is a misconception that executorship is as simple as deleting the deceased’s name from an investment. Even if a bank account is the only asset in the estate, the full deceased estate liquidation process must be followed, up to the drafting of a liquidation and distribution account, which has to be approved by the Master and the South African Revenue Service. This process, if no delays are experienced in the before-mentioned government departments, which is highly unlikely, will take at least eight months to complete.

The appointment of a qualified fiduciary practitioner to handle your estate planning is well worth the cost, and although a reasonable discount is normally allowed, professional services cannot be expected at unreasonable tariffs.

The surviving spouse can be nominated to take the appointment, in which case no fees will be payable to a professional executor. I have however, taken over the administration of many deceased estates following frustrating battles by the surviving spouse with the authorities, so keep the complexities in mind.