Signed and Sealed With Authority: A Look Into Foreign Letters of Appointment

An essential part of the process of administering a deceased estate in South Africa entails the issuing of a legal document by the relevant Master of the High Court (“Master”), granting the nominated person the legal authority to oversee the administration of a deceased estate.  

Threshold of R250 000 

In South Africa, these legal documents are contingent upon the value of the estate. For estates above the prescribed value of R250 000, Letters of Executorship are to be obtained. Conversely, for estates below the prescribed value of R250 000, the Master may dispense with Letters of Executorship and issue Letters of Authority in terms of section 18(3) of the Administration of Estates Act, 66 of 1965 (“the Act”) – both serving the same fundamental purpose of granting the appointed Executor or Master’s representative with the relevant authority to manage and distribute the deceased estate. Once the Letters of Executorship or Letters of Authority is issued, the relevant estate administration process commences, as numerous tasks hinge upon its presence. 

Can one use Probate obtained from a foreign jurisdiction? 

A recent trend in global migration has prompted a relevant question: whether one can use Letters of Appointment / Probate obtained from a foreign jurisdiction to deal with the deceased’s South African estate, also referred to as a foreign estate.  A foreign estate refers to the estate of any person, who, at the time of his/her death, was not ordinarily resident in the Republic of South Africa and leaves property or a Last Will and Testament or document ostensibly being a Last Will and Testament, in South Africa. 

Although several types of legal documents can be issued to appoint an executor to a foreign estate, including Letters of Executorship and Letters of Authority, this article will explore the appointment in terms of section 21 of the Act, by signing and sealing a foreign letter of appointment issued in a proclaimed state, and the appointments in terms of section 25 of the Act. 

Shortened administration procedure  

As a point of departure, section 25 sets out provisions for estates of persons who upon their death are not resident in South Africa and do not own any property other than movable property in the country.  Since the deceased’s only assets in South Africa consist of movables, the Act makes provision for three shortened administration procedures as set out in section 25(1)(a)(i) and (ii): 

1. “Upon the death of any person who is neither ordinarily resident within the Republic nor the owner of any property therein other than movable property, the Master may, subject to the provisions of subsection (2)-  

                a) without observing the usual procedure or requiring security-  

                        I) sign and seal letters of executorship produced to or lodged with him under section 21; or

                        II) if no such letters are produced or lodged, appoint an executor to liquidate and distribute the estate, or direct the manner in which the estate shall be liquidated and distributed; 

Essentially when someone who at the time of their death was not ordinarily resident or did not own any property in South African except for movable items likes cars or jewellery, it can create a unique situation whereby the Master may sign and seal letters of executorship produced to him under Section 21, which allows for the liquidating and distributing of the deceased’s estate without the usual bureaucracy and requirements for financial security thus reducing the burden for the executor. 

Non-resident dies in South Africa with immovable property  

Section 21 on the other hand highlights the procedure for administering an estate of a non-resident who upon his/her death left assets other than only movables or shares in South Africa i.e. including immovable assets which may be administered by the appointed executor under the letters of appointment / grant of probate issued in a “proclaimed State” subject to the approval thereof by the Master, or as its referred to, having the legal document signed and sealed. Section 21 sets out that: 

“Whenever letters of executorship granted in any State and authenticated as provided in the rules made under section 6 (1) (i) of the Rules Board for Courts of Law Act, 1985 (Act 107 of 1985), are produced to or lodged with the Master by the person in whose favour those letters have been granted or his or her duly authorized agent, those letters may, subject to sections 22 and 23, be signed by the Master and sealed with his or her seal of office, and such person shall thereupon with respect to the whole estate of the deceased situate in the Republic, for the purposes of this Act be deemed to be an executor to whom letters of executorship have been granted by the Master: Provided that before any such letters are signed and sealed a duly certified and authenticated copy of the will (if any) of the deceased and an inventory of all property known to belong to him within the Republic shall be lodged with the Master.” 

Benefit of using foreign grant of probate 

The benefit of using a foreign letters of appointment / grant of probate when issued, is that as an Executor you circumvent the need of having to submit a request for a South African equivalent from the Master but more specifically avoiding undue delays, which often result in unwarranted hurdles when administering an estate. Moreover, it allows for the process to continue without the need of having the relatives of the deceased (who ae often not in the country) travelling to South Africa. 

There are however practical considerations one may need to be mindful of, one of them being language used on the said official documentation. In certain jurisdictions, documents must be prepared in their official language. In instances where said language differs from English, it becomes important for the document to be translated however not any translation will suffice, as it will have to be done by a sworn translation services provider.  Overall, it is vital for an Executor to be aware of the alternatives that exist in relation to using foreign letters of executorship. This helps immensely with ensuring that the process is not unnecessarily hindered. 

Less is more  

In the world of estate administration, the process can get convoluted, especially when dealing with foreign estates but fear not, for the law has its quirks and shortcuts. So, if you find yourself in this unique scenario, remember that sometimes in the legal world, less is more.