Deceased Estates - Appointments in Foreign Estates

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.

• Basutoland (Lesotho)
• Bechuanaland Protectorate (Botswana)
• Province of British Columbia (in Canada)
• British Guiana
• Channel Islands
• Eire
• Kenya
• New South Wales (in Australia)
• New Zealand
• Northern Rhodesia (Zambia)
• Southern Rhodesia (Zimbabwe)
• South West Africa (Namibia)
• Swaziland
• Tanganyika (Tanzania)
• United Kingdom of Great Britain and Ireland
• Victoria (in Australia)

TYPES OF APPOINTMENTS IN FOREIGN ESTATES
There are seven (7) types of appointments which can be made in Foreign Estates. They are as follows:

1. Signing and sealing of foreign letters of appointment issued in a proclaimed state, where the deceased left assets other than only movables or shares in the Republic (section 21).
   
   
2. Three Shortened procedures in terms of section 25 where the only assets in South Africa consists of movables:
   i) Signing and sealing of foreign letters of appointment in terms of section 21, with directions (section 25(1)(a)(i)).
   ii)  Letters of executorship, with directions, where the only assets in the estate consist of movables, and the deceased was not resident in a proclaimed state or where no letters of appointment were issued in a proclaimed state (section 25(1)(a)(ii)).
   iii)  Appointment by means of form J128 where the only assets in the estate are shares (second portion of section 25(1)(a)(ii)
   
   
3. Ordinary letters of executorship issued in terms of section 14 of the Act.
   
   
4. Ordinary section 18(3) appointment.
   
   
5. Appointments in estates of Mozambican nationals governed by the provisions of the Mozambican Labour Agreement of 1964, Treaty Series 11.
   *Please note: This agreement is known as Treaty Series 11 and came into force on 1 January 1965. In terms of Article 1 of the Agreement it only regulates the position of Mozambican nationals whose employment on the gold and coal mines are governed by the provisions of the Agreement and who have signed a labour contract in accordance with the Agreement. The Agreement is not applicable to Mozambican nationals who are not governed by the agreement (whether they work on the mines or elsewhere) and should they die leaving assets in South Africa their assets will be dealt with as any other foreign estate in terms of Master’s Office procedures.

The following documents must be lodged before foreign letters of appointment can be signed and sealed:

1. Death Notice – J 294.
2. Death certificate (If the person was South African citizen, as death certificate issued in South Africa needs to be lodged).
3. Affidavit in terms of section 22(2)(c) of the Act in terms of which is declared that letters of executorship have not already been granted or signed and sealed by any other Master in the Republic.
4. A duly certified and authenticated copy of the will of the deceased (if any). Where the will is in a foreign language it is the practice to require a sworn translation thereof by a sworn translator appointed by the Republic courts.
5. An inventory (J 243) reflecting all property known to belong to the deceased within the Republic of South Africa.
6. A bond of security by the foreign executor for the full value of the assets, unless he is exempted in terms of the provisions of section 23(1) or (2). Also refer to the proviso to section 23(2) in terms of which the Master may, notwithstanding the exemptions provided for in sub-section (2), call for security in certain circumstances. One of these circumstances is where the nominated person resides or is about to reside outside the Republic.
7. Authenticated copy of the letters of appointment granted in the proclaimed state.  This document must be lodged in duplicate.  If not, the Master may make a copy thereof and certify it on payment of the prescribed fee for certified copies.
8. When the person applying for the endorsement is not resident in the Republic, an authenticated document choosing a domicilium citandi et executandi within the Republic is required.
9. Where the foreign executor is represented by an agent in the Republic, a certified copy of the Power of Attorney must be lodged.
10. An Estate Duty Return (Rev 267).  If estate duty is payable, proof of payment must be lodged or proof that payment has been secured to the satisfaction of the Commissioner of Inland Revenue.
11. If the only assets in South Africa are movables, an affidavit in terms of section 25(2)(a) read with Regulation 4, made by the person applying for the signing and sealing of the foreign letters of appointment (foreign executor or his duly authorized agent).  
    This affidavit is lodged in the place of the authenticated copy of the will (if any) and inventory required under section 21.  In terms of regulation 4 the affidavit must specify the following:

    “that it is an affidavit in terms of section 25 of the Act;

    1. the full name of the deceased;
    2. the full name and address of the deponent;
    3. the place and country or territory wherein the deceased was ordinarily resident at the time of his death;
    4. 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;
    5. whether letters of executorship have been granted and, if so, in whose favour and where such letters have been granted;
    6. whether the deceased died intestate or left a will and, in the latter event, whether such will has been accepted as a valid will;
    7. that the deceased was not the owner of any property in the Republic other than movable property;
    8. particulars of such movable property;
    9. 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;
    10. the full name and address of any beneficiary in the estate of the deceased, resident in the Republic;
    11. 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;
    12. 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
    13. 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.