Who Should Wind Up the Estate: Family Member, Attorney or Trust Company?

A note on terminology

In South Africa an estate agent is a property professional regulated by the Property Practitioners Regulatory Authority, and has nothing to do with deceased estates. If you are choosing who winds up an estate, the real options are a family member, an independent attorney or fiduciary practitioner, or a bank or insurer's trust company.

Option 1: a family member as executor

• Cost: potentially nothing. A family member is entitled to the same 3.5% tariff but very often waives it. They are also usually exempted from furnishing security, which removes a bond premium and a delay.
• Best for: small and simple estates, especially section 18(3) estates under R250,000, where a surviving spouse or child can handle it with the Master's office directly.
• Risks: it is a real job with real personal liability, done during grief. Distributing before the creditors' period closes, or before SARS is settled, exposes the executor personally.
• The hybrid that most people should consider: accept the appointment yourself and appoint an attorney or fiduciary practitioner as your agent under a power of attorney to do the work. You stay in control of decisions, they do the paperwork, and the fee is negotiated with them rather than assumed at the full tariff.

Option 2: an independent attorney or fiduciary practitioner

• Cost: the same 3.5% tariff applies as a ceiling, but independents are frequently more willing to negotiate, particularly on larger estates where 3.5% produces a fee out of proportion to the work.
• Best for: most middle-sized estates, and anything with a property, a business or a family that does not entirely agree.
• Advantages: you generally deal with the person doing the work, responsiveness is better, and the fee is more negotiable.
• Risks: continuity. A sole practitioner can retire, fall ill or die mid-estate. Ask what happens if they do. Check the firm is in good standing with the Legal Practice Council and, for an attorney, that the Fidelity Fund certificate is current.

Option 3: a bank or insurer's trust company

• Cost: usually at or near the full tariff plus VAT, unless negotiated down at will-drafting stage.
• Best for: complex estates, offshore assets, trusts, estate duty planning, and families where neutrality is worth paying for.
• Advantages: continuity, deep process, indemnity behind any mistake, and no personal stake in the outcome.
• Risks: responsiveness, and being a small file in a large queue. Fee flexibility disappears once the will names them and the testator has died.

How to actually decide

1. Work out the tariff fee on the estate first, so the decision is made with a number rather than a feeling. On a R2 million estate the full tariff plus VAT is over R80,000, which is enough to be worth an afternoon of thought.
2. If the estate is under R250,000 gross, stop here. Do it yourself through the section 18(3) process and do not pay anyone a percentage.
3. If the estate is simple, has no immovable property and the family agrees, a family member with occasional paid advice is usually the right answer.
4. If there is immovable property, a business, a trust, offshore assets, minor children or an estate duty exposure, get a professional involved.
5. If the family is in conflict, appoint a neutral professional. A family executor in a divided family is a fight waiting to happen, and the legal costs of that fight will exceed the fee you saved.
6. Whoever you choose, get the fee in writing before you commit, and ask specifically whether VAT and any additional administration fees sit on top.

The rule of thumb

The percentage tariff is indifferent to how hard the estate is, which is what makes it a poor fit at both ends. On a small estate, 3.5% of very little does not pay for real work, which is why professionals are unenthusiastic about them and why families should handle them. On a large but simple estate, 3.5% of a great deal produces a fee wildly out of proportion to the effort, which is exactly when you should negotiate.

Run your own numbers before you sign anything: /tools/deceased-estates/executor-fees-calculator

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