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A foreign estate comes into existence when any person, who was not ordinarily resident in the Republic of South Africa, dies leaving property or any document being or purporting to be a will, in the Republic.
If the deceased left assets in the Republic, whether or not he or she was ordinarily resident in the Republic, no person may deal with the South African assets unless authorized thereto by a Master of the High Court in South Africa. (Section 13(1) of the Administration of Estates Act 66 of 1965 (“the Act”).
This means that a person who has received letters of executorship / probate in some country other than the Republic of South Africa will not be entitled to deal with the assets of the estate within the Republic. They must, before they can do so, be authorized by a Master in the Republic.
The Master gives this authority either by issuing letters of appointment or, in certain circumstances which will be discussed below, by signing and sealing letters of appointment previously issued by some other state.
In terms of section 4(1)(b) of the Act, any Master to whom application is made to grant letters of executorship or to sign and seal any such letters already granted in respect of the estate concerned, has jurisdiction in a foreign estate.
Not all foreign estates are treated the same.
Foreign estates of the so-called “proclaimed states” receive special treatment, in that the Master may, instead of issuing letters of executorship in those estates, merely sign and seal the letters of appointment already issued in the foreign state (section 21 of the Act refers).
Although a foreign executor may apply for the signing and sealing of his appointment issued in a proclaimed state he can also choose to apply for appointment in the normal way and lodge the documents normally required.
The following states have been proclaimed under section 40 of the Administration of Estates Act, 1913.
TYPES OF APPOINTMENTS IN FOREIGN ESTATES
There are seven (7) types of appointments which can be made in Foreign Estates. They are as follows:
The following documents must be lodged before foreign letters of appointment can be signed and sealed:
“that it is an affidavit in terms of section 25 of the Act;
- the full name of the deceased;
- the full name and address of the deponent;
- the place and country or territory wherein the deceased was ordinarily resident at the time of his death;
- the place, country or territory and date of death of the deceased, and whether the death has been registered by the authorities of the country or territory concerned;
- whether letters of executorship have been granted and, if so, in whose favour and where such letters have been granted;
- whether the deceased died intestate or left a will and, in the latter event, whether such will has been accepted as a valid will;
- that the deceased was not the owner of any property in the Republic other than movable property;
- particulars of such movable property;
- whether any usufructuary, fiduciary or fideicommissary or other like interest in property within the Republic in favour of the deceased has ceased upon his death and, if that be the case, particulars thereof;
- the full name and address of any beneficiary in the estate of the deceased, resident in the Republic;
- the full name and address of any person in the Republic having any claim against the estate of the deceased and details of such claim, or that, to the knowledge of the deponent, no person in the Republic has any claim against the estate of the deceased;
- that to the knowledge of the deponent no person in the Republic can be prejudiced by the transmission of property in the estate of the deceased to the person in whose favour letters of executorship have been granted or to his duly authorized agent, and
- the full name and address of any duly authorized agent in the Republic acting on behalf of the person in whose favour letters of executorship have been granted.”
After the Letter of appointment has been signed and sealed, onwards, all the procedures in the Administration of Estates Act will apply to the estate, which means that the duly appointed person or his/her agent must advertise the estate in terms of section 29, thereafter lodge a liquidation and distribution account in terms of section 35, where applicable, and then finalize the estate as prescribed by the Act.