LAW SIMPLIFIED: CAN AN EXECUTOR ACT BEFORE APPOINTMENT?

Mohamed Raees Hussain | Legal Advisor

When someone passes away, their estate doesn’t simply dissolve, it must be properly administered and distributed. But before that can happen, one critical step must occur: the appointment of an executor by the Master of the High Court (“the Master”).

A common question arises:

Can a nominated executor, perhaps a family member, attorney, or professional start acting on behalf of the estate before the official appointment?

At first glance, it might seem practical, even necessary, especially when urgent action is needed to preserve assets. But the law is clear: until the Master issues letters of executorship, an executor has no legal power to act.

The Legal Framework

The Administration of Estates Act 66 of 1965 (“the Act”) governs how deceased estates are administered in South Africa.

Section 13(1) of the Act provides in unequivocal terms: 

“No person shall liquidate or distribute the estate of any deceased person, except under letters of executorship granted or signed and sealed under this Act…”
 
This provision is peremptory, meaning it allows no exceptions unless specifically authorised by the Master or under section 15 of the Act.

Put simply: until the Master formally appoints an executor and issues letters of executorship, any act of “liquidation” or “distribution” is legally invalid.

This principle was reinforced in Ex parte Ganga 1979 (1) SA 586 (N), where the court confirmed that a person cannot act as executor not even temporarily without formal appointment. Any transaction concluded before appointment is void ab initio (invalid from the outset).

Practical Implications: The Risks of Acting Too Soon

Legal Practitioners and family members often find themselves in situations where swift decisions seem necessary, for instance, selling perishable assets, paying urgent debts, or securing property.

However, acting prematurely creates serious legal risks such as: 

  • Invalid Transactions: Any agreement or sale entered into before appointment has no legal effect. Even if ratified later, it remains void from inception. 

  • Registrar of Deeds’ Role: The Registrar of Deeds is obligated to ensure all transactions comply with applicable laws. Under section 3(1)(b) of the Deeds Registries Act 47 of 1937, the Registrar must reject any deed or document that doesn’t comply with legal requirements. Therefore, if an executor signs a transfer document before formal appointment, the Registrar is bound to reject the registration. 

  • Responsibility of Conveyancers: While Regulation 44A of the Deeds Registries Act 47 of 1937 places responsibility on the preparer of the power of attorney to ensure the executor is duly appointed, this does not override the statutory prohibition in section 13(1) of the Administration of Estates Act. Conveyancers must verify that the executor’s authority exists before acting on any instruction. 


The Illusion of “Urgent Sales”

Some argue that “urgent” transactions can be entered into prior to appointment and later ratified once the letters of executorship are issued. Unfortunately, this approach fails both legally and practically.

The law does not recognise retrospective authority in this context. The executor’s powers flow exclusively from the Master’s appointment, not from nomination in the will or family agreement. Thus, any sale or contract concluded before appointment is void and unenforceable, even if later approved by all heirs.

Why the Restriction Exists

This strict rule might seem rigid, but it serves important purposes: 

  • Protection of beneficiaries and creditors: It ensures that only a person lawfully recognised by the Master can manage and distribute assets. 

  • Prevention of fraud or mismanagement: Without oversight, unauthorised persons could dispose of estate property unlawfully. 

  • Preservation of the rule of law: It maintains the integrity of estate administration by requiring proper control and accountability. 

Until letters of executorship are issued, any interested party, such as heirs or creditors may apply to the Master for directions, or the Master may authorise limited actions if truly necessary.

Practical Guidance for Executors and Practitioners

If you’ve been nominated as an executor or are advising one, keep these key points in mind: 

  • Wait for formal appointment: No matter how urgent the situation, don’t conclude any transactions or distribute assets before receiving letters of executorship. 

  • Secure the estate instead: While you can’t act as executor yet, you can take practical steps to safeguard assets, such as locking up premises, notifying banks, or documenting property, provided you don’t dispose of or transfer ownership. 

  • Keep beneficiaries informed: Transparency reduces conflict and helps manage expectations about the legal process. 

  • Consult promptly: If there are pressing matters (e.g., expiring leases, perishable stock), contact the Master’s Office for guidance or an interim directive under the Act. 


Authority Follows Appointment

The power to act as an executor is not automatic, it flows from formal appointment by the Master. Until then, any act of administration or distribution is without legal force.

The authority to act as an executor does not arise automatically upon nomination, it flows solely from formal appointment by the Master of the High Court. Until such appointment is granted, any act of administration or distribution of the estate has no legal effect and may even expose the individual to liability.

It is entirely understandable to wish to move matters forward swiftly, especially during a time of loss and emotional difficulty. However, the law’s requirement for formal appointment serves an important purpose: it ensures that every estate is administered fairly, transparently, and in accordance with legal safeguards designed to protect the interests of all beneficiaries and creditors.

In essence, being nominated is not the same as being appointed. The designation “executor” carries no legal authority until the Master confers it. Only then does the executor acquire the power and the responsibility to act on behalf of the estate with full legal validity.