Deceased estates: Understanding the role of executors

FUNGAI CHIMWAMUROMBE AND RACHEL SITHOLE

In Zimbabwe, an executor’s role in estate administration is akin to walking a tightrope since the executor must provide a just administration of an estate in the midst of grief and emotions.

Executors are appointed to manage the estate of a deceased person, ensuring that the deceased’s wishes are honored, debts are settled, and assets are distributed according to the law or the terms of a will.

But what exactly does the role of an Executor entail?

The Role of Executors in Deceased Estates

An executor is a person appointed by a testator (the person who has made a will) to administer the estate upon their death. If there is no will, or if the named executor cannot serve, the Master of the High Court appoints an executor according to the Administration of Estates Act [Chapter 6:01] in consultation with beneficiaries of the deceased estate by way of an edict meeting. Executors are integral in ensuring that the administration of the estate is conducted according to legal requirements and the deceased’s wishes.

Appointment of Executors

Executors are appointed through the will of the deceased. If a person dies intestate (without a will), the Master of the High Court appoints an executor. Section 25(3) and 68B of the Act empowers the Master to appoint an executor who is suitable and competent to administer the estate.

Functions of Executors

The main functions of executors include:

1. Obtaining Letters of Executorship: Executors must apply for and obtain Letters of Executorship from the Master of the High Court, which authorizes them to act on behalf of the estate.
2. Collecting and Safeguarding Estate Assets: Executors are responsible for identifying, collecting, and safeguarding the assets of the deceased. This involves locating and listing all property, both movable and immovable, and ensuring they are preserved during the administration process.
3. Settling Debts and Liabilities: Executors must identify and pay the debts of the deceased from the estate’s assets. This includes settling any outstanding taxes, loans, or other financial obligations.
4. Distribution of Assets: Executors must distribute the remaining assets of the estate in accordance with a will or the laws of intestate succession.
5. Preparing Estate Accounts: Executors are required to prepare a detailed account of the estate’s administration, which must be submitted to the Master of the High Court. This includes a statement of assets, liabilities, income, and expenses.
6. Ensuring Legal Compliance: Executors must ensure that all actions comply with legal requirements, including those stipulated by the Administration of Estates Act and other relevant legislation.

Duties of Executors

Executors have several fiduciary duties, which are critical for the proper administration of the estate. These include:

 Fiduciary Duty

Executors have a fiduciary duty to act in the best interests of the estate and its beneficiaries. This duty requires honesty, integrity, and impartiality. They must act with care and diligence, avoiding any conflicts of interest

Duty to Keep Accurate Records

Executors must keep accurate records of all transactions related to the estate. This includes documenting the collection of assets, payments of debts, and distribution of assets. These records must be available for examination by the Master of the High Court or beneficiaries.

Duty to Communicate with Beneficiaries

Executors must communicate effectively with the beneficiaries of the estate. This includes informing them about the progress of the estate administration and providing them with relevant documents and information.

Remuneration of Executors

In general Executors’ remuneration consists of 5 percent of the gross value of assets. The two statutory instruments that give a detailed breakdown of executors’ fees are the Estate Administrators (Registration and Examinations) Amendment (Rules 2018 (No. 4) SI 59 of 2018 and the Estate Administrators (Registration and Examinations) Amendment (Rules 2017 (No. 3) SI 50 of 2017.

Selling of Assets

An Executor cannot arbitrarily sell assets to cover administration costs. Section 120 of the Administration of Estates Act is a crucial provision that regulates the sale of estate property by executors. This section mandates that an executor must obtain the approval of the Master of the High Court before proceeding with the sale of any immovable property belonging to the deceased’s estate. The primary purpose of this requirement is to ensure that the sale is conducted in a manner that is fair, transparent, and in the best interest of the estate and its beneficiaries. Section 120 explicitly states that “No sale of any immovable property of the estate of a deceased person shall be valid unless the Master has given his or her prior written approval to the sale.” This provision helps prevent potential misuse of estate assets by requiring judicial oversight over significant transactions. The Master’s approval is intended to protect the interests of beneficiaries by ensuring that the sale is justified and that the sale proceeds are managed correctly. Additionally, the section provides that the application for approval must include details such as the proposed sale price and the reasons for the sale, thereby promoting transparency and accountability in the estate administration process. Failure to obtain this approval renders the sale void, thereby upholding the integrity of the estate administration process and safeguarding the rights of the beneficiaries

An executor may be removed from their position under certain conditions. The grounds for dismissal and the process are governed by the Administration of Estates Act.

 Grounds for Dismissal

Executors can be dismissed on several grounds according to Section 117, including:

1. Mismanagement of the Estate: If an executor fails to manage the estate’s assets properly or engages in fraudulent activities, they can be removed.
2. Incapacity: If an executor is incapacitated or unable to perform their duties due to illness or other reasons, they can be dismissed.
3. Conflict of Interest: Executors who have a personal interest that conflicts with their duties may be removed.

 Procedure for Dismissal

The procedure for dismissing an executor involves several steps. Application to the High Court, interested parties must apply to the High Court for the removal of the executor. This is done by filing an application supported by evidence of the grounds for removal (Administration of Estates Act, Section 85). The High Court will hold a hearing where evidence is presented, and the executor has an opportunity to respond to the allegations, If the court finds sufficient grounds for removal, it will issue an order dismissing the executor and appointing a new one.

Executors play a crucial role in the administration of deceased estates in Zimbabwe. Their functions and duties are multifaceted, requiring a high degree of responsibility, legal knowledge, and impartiality. The legal framework governing executors is established primarily through the Administration of Estates Act [Chapter 6:01], supplemented by judicial precedents and statutory provisions. Executors are expected to act in the best interests of the estate, manage assets responsibly, and adhere to legal requirements. In cases of misconduct or incapacity, the High Court has the authority to dismiss executors, ensuring that the administration process remains fair and effective.

Understanding these aspects of the role of executors is essential for individuals involved in estate administration, ensuring that the deceased’s estate is managed in accordance with the law and the deceased’s wishes.

Fungai Chimwamurombe is a registered legal practitioner and Senior Partner at Zenas Legal Practice and can be contacted at fungai@ zenaslegalpractice.com 

Rachel Mary Sithole is a partner at Zenas Legal Practice and can be contacted on rachel@zenaslegalpractice.com and +263 73 590 5092