Introduction
The law relating to the administration of estates in Zimbabwe has been developed over many years and is consolidated in the Administration of Estates Act [Chapter 6:01] (hereinafter the Act). The Act provides for the administration of deceased estates, estates belonging to minors or mentally defective or disordered persons and persons absent from Zimbabwe, as well as those whose whereabouts are unknown. The Act also provides for the role of the Master of the High Court and the appointment of curators and executors and ensures protection for both creditors and beneficiaries. This article, however, focuses only on the administration of deceased estates.
A person who dies without a will, as opposed to one who leaves a will, is said to have died intestate. All estates whether the deceased died intestate or not, are required to be administered in terms of the Act. There are numerous procedures that have to be followed in appointing an executor and administering the estate to conclusion. These procedures are time consuming and can range from about six months to a number of years. Thus it is not always possible to provide an accurate estimate of the time the administration of a particular estate is likely to take, as this will depend upon the nature and extent of the assets and related complications. It will be helpful, therefore, for beneficiaries to have a broad outline of the procedures to be followed in the administration of an estate as provided for in the Act and these are set out hereunder.
Appointment of the Executor
If an executor is nominated in a will, s/he cannot act until s/he is appointed by the Master or the Assistant Master having jurisdiction over the district where the deceased was normally resident. An executor nominated in a will applies for her/his appointment by providing the Master or the Assistant Master with:
- the original Will and Codicils; and
- death notice duly completed; and
- preliminary inventory of assets; and
- a letter indicating her/his willingness to be appointed; and
- waiver letters from the beneficiaries waiving the need for the executor to provide security; and
- death certificate of the deceased; and
- marriage certificate if the deceased was married; and
- death certificate of the deceased’s spouse if the spouse died before; and
- bond of security for the due and faithful administration of the estate.
If the deceased died intestate (without a will) then an Edict Meeting will be called by the Master to appoint an executor. The notice is advertised in the Government Gazette and will call upon the surviving spouse, next of kin and creditors to attend the meeting. If there is no consensus on whom the executor will be, the Master will appoint one. The order of preference is set out in Section 26 of the Act as follows:
‘the surviving spouse, or failing him or her the next or some of the next of kin, or failing him or them a creditor or creditors, or failing him or them failing a legatee or legatees…’
The appointment is formalised once the Master issues Letters of Administration allowing the executor to deal with the estate of the deceased.
Duties of the executor
The executor is required to:
- Publish in the Government Gazette (and in newspaper circulating in the district where the deceased normally resided) a notice calling upon creditors to lodge claims against the estate within 30 days; and
- obtain sworn valuations of the assets in the estate; and
- sell any assets which need to be reduced to cash; and
- calculate and make allowances for any Estate Duty which might have to be paid; and
- lodge, within six months of appointment, a Liquidation and Distribution Account reflecting all assets and liabilities and the proposed distribution of the assets to the beneficiaries under the will or in terms of the law relating to intestate succession. In complicated estates the Master may allow an extension of this time where circumstances warrant it.
If the beneficiaries feel that the executor is not discharging her/his duties properly they may lodge a complaint who the Master who, if s/he feels the complaint is substantiated and after carrying out an inquiry, may apply to a Judge of the High Court for the executor to be removed and another one to be appointed.
Approval of the Liquidation and Distribution Account
Once the Master has approved the account it must be advertised as lying for inspection for 21 days at the Master’s Office and the Magistrate’s Court in the district where the deceased was ordinarily resident.
Distribution of assets
If the 21 day inspection period has expired without objection, the executor has a period of two months in which to distribute inheritances to beneficiaries.
What should a beneficiary do?
Once an executor has been appointed s/he holds the deceased’s estate in trust. Any actions that would have been instituted by or against the deceased have to be instituted by or against the executor. The executor must also decide whether to continue any action that was pending at the time of the deceased’s death. A beneficiary should provide the executor with such information and documents as may be called for to enable the executor to take custody of the estate and to have an accurate inventory of assets and liabilities.
